STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


EDDIE L HARRIS, Employe

NEW WORLD COMMUNICATIONS OF MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607268MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 41 of 1999, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $1,118.00 to the Unemployment Reserve Fund.

Dated and mailed January 7, 2000
harried.usd : 105 : 1  VL 1007.01 VL 1059.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, for the following reasons. First, the commission agrees with the administrative law judge's conclusion of quit. For a separation to be a quit, the employe does not necessarily have to state flatly "I quit." A quit for unemployment insurance purposes also includes conduct inconsistent with an intent to maintain the employment relationship. The employe's failure to pay his maintenance of membership fee to the collective bargaining representative representing him, is in this category. The employe asserts in his petition that he is under heavy financial strain, and the commission does not dispute that. The employe did not establish, however, that he was financially unable to make the necessary payments. The employe knew the payments were mandatory for him to keep his employment; his failure to make them was conduct inconsistent with an intent to continue the employment relationship and, as such, a quit pursuant to Wis. Stat. § 108.04(7)(a). The employe also asserts that he should not be penalized for an agreement between the employer and the union. The agreement is a legal one, though, as indicated in the appeal tribunal decision. The employe also argues, finally, that he should not have to repay the benefits already received, because of either department error or late appeal by the employer. The only ground for waiver of recovery of an overpayment is department error. There is no evidence to indicate that the department committed error in its handling of this case, however. The only failure indicated by the file, is the employer's failure to respond to the department's inquiry leading up to its issuance of the initial determination. The employer was not legally required to respond at that time, however, and such a failure also is not grounds for waiver of recovery of overpayments. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: 
CAROL WEIDINGER
R E HARRINGTON INC

WITI TV FOX 6 MILWAUKEE


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