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


THORN MARSHALL, Employee

ALLCAST INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00607252MW


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 employee worked about one year as a machine operator for the employer, a manufacturer. His last day of work was March 20, 2000 (week 13), when he was discharged.

On January 26, 2000 the employee received a written warning for sleeping at his machine. The employee signed the warning. The employee denied sleeping. The employee received a written warning on January 20, 2000 for being uncooperative with a co-worker. The employee maintained that he was trying to get the attention of another worker and was yelling because both of them had ear plugs in. The other worker apparently took offense.

The employee was scheduled to work from 3:00 p.m. until 11:00 p.m., Monday through Friday. His job involved working on a trim machine finishing castings, inspecting, charting how many were done per hour, and throwing parts with defects into a box or keeping them. At about 4:00 p.m. on March 20, 2000, the employee's supervisor went to the employee's workstation and the employee was not there. The supervisor found the employee in the lunchroom eating a sandwich. The employee's first break was scheduled for 5:30 for 10 minutes and second at 9:15 for 15 minutes for lunch. The supervisor asked the employee what the problem was and the employee indicated there was a problem with his machine. There were two set up people on the floor who did not know that the employee was having machine problems. The employee had not paged the supervisor, or otherwise notified the supervisor, to inform the supervisor that he was having problems with his machine and was taking an unscheduled break. The supervisor accompanied the employee back to his machine, ran it, and found nothing was wrong with it.

At 8:00 p.m. the employee's supervisor checked the employee's "P" or production chart to check his scrap rate. There was nothing written on it from 4:00 to 8:00 p.m. The employee was to chart every hour on the hour to keep track of how much he did per hour and scrap pieces. The supervisor returned at 9:00 p.m. and the employee had the "P" chart filled out. The supervisor asked the employee where he got the numbers and counts as the employee had nothing written on scratch paper. The employee could not tell the supervisor. The supervisor went through the employee's box of good parts and found five percent or 5 to 10 pieces out of 100 were noticeably scrap. He confronted the employee about the "P" charting and the employee stated that it slipped his mind. The supervisor discharged the employee that night for his unacceptable job performance.

The issue to be decided is whether the employee was discharged for actions amounting to misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

First, the employer did not establish that the employee engaged inappropriate conduct prior to his last day of work. The employer testified that at the time the employee was given the warning for sleeping he denied the allegation. The employer did not present testimony from anyone who saw the employee sleeping. The employer also did not present anyone to dispute the employee's version of the second event in which he and another worker were engaged in a disagreement.

The employee's conduct on his last day of work demonstrated an intentional disregard of the employer's interests. The employee halted production without valid reason and without permission. The employee took an unscheduled and unauthorized break. The employee failed to accurately record his production. The employee's overall conduct on his last day of work demonstrated an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee rising to the level of misconduct with his work.

The commission therefore finds that in week 13 of 2000 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $5,221.00 for weeks 13 through 27 and 38 through 45 of 2000, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 employee 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 reversed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2000, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $5,221.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed November 7, 2000
marshth.urr : 132 : 6 : MC 658   MC 688

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding his impressions of witness demeanor and credibility. The ALJ did not have a clear recollection of the witnesses. The ALJ did believe the employee was "goofing off" but considered his conduct an isolated incident. The commission finds the supervisor's version of events more consistent and more credible. The commission disagrees with the ALJ's view of the employee's conduct on his last day of work as an isolated incident.

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.I. and other special benefit programs that are due to this state, another state or to the federal government.

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


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