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


CHARLES L DANIELS, Employee

SUN COUNTRY AIRLINES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00607797MW


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 four months as a customer service representative for an airline. The employee was discharged on August 1, 2000 (week 32).

On July 15, 2000 the employee was scheduled to work 16 hours. He told his supervisor he was going to take a nap on his break. He asked three co-workers to inform him that his break was over. All three failed to wake him and the employee slept one hour past his break.

The employee had an unsatisfactory attendance record. The employee was absent due to illness on April 16 and April 25, 2000. The employee was late on April 22, July 13, and July 15, 2000, due to a lack of transportation. The employee did not have personal transportation and his shift began before buses ran. The employee arranged for a friend to give him a ride to work. He was late on April 28, 2000, because his alarm did not go off.

On July 28, 2000 the employer gave the employee a warning which extended his probationary period to Septermber18, 2000. The warning indicated that further absences or tardiness could lead to termination. Exhibit 2. The employee was late on July 29, 2000 because his friend's car would not start. He had to call a cab and paid $21.00 in order to get to work. On July 29, 2000, when the employee realized he was going to be late, he called a co-worker and asked her to punch him in. She refused to do so.

The employee was discharged for the above incidents. The issue to be decided is whether the actions which led to his discharge constituted 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."

The sleeping incident standing alone does not support a finding of misconduct. The employee notified the employer ahead of time that he was going to take a nap. He did not intend to sleep during his work time. He was repeatedly tardy due to transportation problems. He was warned that his tardiness was not acceptable. It is the employee's responsibility to arrange for reliable transportation. The case rests on the employee's request that another worker punch him in. The purpose of the request was to allow the employee to appear to be working when he was not working. The employee was motivated by the fact that he knew he would be subject to discharge if he did not appear for work on time. It is adverse to an employer's interest for a worker to be punched in by another worker or to be listed as on the clock when the worker is not performing services for the employer. If the employee's request had been heeded he would have been paid for work he did not perform. The employee's actions essentially amounted to attempted theft.

The employee generally alleged that the employer used a double standard and he was treated differently because he is gay. However, the employee did not establish that other probationary workers with poor attendance who asked a co-worker to punch them in were allowed to continue employment because they were not gay.

The commission further finds that the employee was paid benefits in the amount of $6838.00 for weeks 32 through 53 of 2000 and weeks 1 through 4 of 2001, for which he was not eligible and to which he 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 32 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. He is required to repay the sum of $6838.00 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 February 9, 2001
daniech.urr : 132 : 1 :  MC 630  MC 659.02  MC 697

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding his impressions of witness credibility and demeanor. The administrative law judge found the employee to be a credible witness. The administrative law judge did not believe the employee was discharged because he is gay. The commission's reversal is not based on a differing impression as to witness credibility but upon reaching a different legal conclusion when applying the law to the facts.


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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uploaded 2001/02/09