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

ABEL M RODRIGUEZ, Employe

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600259MW

ORDER

Pursuant to authority granted in Wis. Stat. § 108.09 (6)(c), the commission sets aside the February 3, 1999 appeal tribunal decision in this matter and remands the matter to the Department of Workforce Development for hearing and decision on the merits. The basis for the commission's action in this case is the department's having found concealment of a quit by the employe, because the employe engaged in conduct inconsistent with an intent to maintain an employment relationship. To find concealment is to find that a claimant intentionally mis-stated a material fact in order to obtain unemployment insurance he or she was not entitled to. Where, for example, an employe admits he or she quit, but has either no or an obviously self-serving justification for having failed to report the quit, then a finding of concealment is easily maintained. Here, on the other hand, the finding of concealment was based solely upon the employe's having engaged in conduct inconsistent with an intent to maintain an employment relationship. There was no interview with the employe and, while "conduct inconsistent" often does constitute a quit within the meaning of Wis. Stat. § 108.04 (7)(a), there also are occasions when it does not. In any event, the evidence before the department in this case was insufficient for the department to conclude that the employe concealed a quit of employment. For these reasons, the commission believes the merits are best heard. This order concerns only this case, and not the three other cases the employe has pending before the commission.

Dated and mailed April 22, 1999
rodriab.upr : 105 : 3   BR 330

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

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