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


ANDRE K LOVE, Employe

EMMPAK FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604845MW


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 unemployment benefits from week 4 through 11 of 1999. Thereafter, he is eligible for benefits if otherwise qualified.

Dated and mailed January 27, 2000

loveand.usd : 178 : 6  MC 605.091

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employe committed misconduct by missing work due to being in jail.

The issue in this case is whether the employe was at fault in his incarceration. If so, then misconduct can be established. The ALJ found that the employe was not at fault based on his testimony that he was mistakenly arrested for robbing a cab and no charges were pressed. The commission has no grounds in the record for finding otherwise. Since the employe also testified that he was on probation at the time and had some outstanding tickets, the commission might have found some fault in this conduct. However, the ALJ elicited no testimony on the reason for the outstanding tickets and neither party attended the remand hearing ordered for this purpose.

In cases where the commission has found misconduct based on incarceration in the past it was able to find affirmatively that the employe's failures to act caused a chain of events which created circumstances which made him unavailable for work and he was therefore the defaulting actor. Brian W. Schweikert v. Ganton Technologies Inc., (Hearing no. 91-606281, LIRC decision March 24, 1992).

However unlike in the Schweikert case, this record does not establish the employe's failures caused the incarceration. Therefore, the commission affirms the appeal tribunal decision based on the ALJ finding the employe's explanation regarding the cab credible and the lack of any compelling evidence that another factor attributable to employe fault caused his prolonged incarceration.


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