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


ALBERT ADAMS, Employe

M M SCHRANZ ROOFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00600375MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for five years as a roofer for a roofing contractor. His last day of work was on October 13, 1999 (week 42).

After the employe's last day of work he was seen by a doctor for a non-work related knee condition. He was excused from work until October 28, 1999. However, the employe did not contact the employer after his release to work date passed. The employer had work for its other roofers and would have had work for the employe if he had contacted it and been in good standing with his union.

Unrelated to his leave from work, the employe had been notified by his union by letter dated September 8, 1999 that he was three months in arrears on his union dues and if this persisted he would be barred by union contract from working until he paid them. The employe contacted the union about this but never spoke to the employer. The employe expected the employer to forward his monthly dues from his first paycheck each month. However, it does not do so in any month in which the employe worked fewer than 20 hours. The employe was ultimately responsible for paying his dues. The employer was notified that the employe was still in arrears in October and that he was not to work until he settled his account. It took no action because the employe never contacted it for work after that date.

The issue before the commission is whether the employe quit and if so whether he is entitled to benefits.

The ALJ did not credit the employe's testimony that he called to report for work after October 28, 1999. He found more creditable the employer's account that it had work available. The commission accepts this credibility determination. Since the employe failed to contact the employer after he was released to return to work, he abandoned his job. Such abandonment of his employment constitutes a quitting. The employe has offered no reason for his actions which would constitute an exception to the quit disqualification.

The employe does not assert that the employer's failure to forward his union dues prompted him to quit. Although he was placed on notice more than a month before his last day work that he was in arrears, he never raised the issue with the employer. He was also aware that the responsibility for paying these dues was his own. Since the employe never raised this as a reason for quitting nor took any action with the employer to resolve it, it cannot be a basis for finding good cause to quit.

Had the employe not abandon his job by failing to contact the employer, the commission would have found a quitting based on the employe's knowing failure maintain his good standing with the union by paying his dues. Remaining a union member in good standing by paying his dues was a reasonable condition of his employment and his failure to do so would also amount to a quitting.

The commission therefore finds that in week 42 of 1999, the employe voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and that this quitting was not for any reason permitting the immediate payment of benefits.

The commission further finds that the employe was paid benefits in the amount of $1,782 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is modified and as modified above is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 42 of 1999, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $1,782 to the Unemployment Reserve Fund.

Dated and mailed March 24, 2000
adamsal.urr : 178 : 7  VL 1001  VL 1047

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has modified the ALJ's decision to clarify the reasons why the employe's quitting disqualifies him from the immediate payment of benefits.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: M M SCHRANZ ROOFING INC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]