BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


BRIAN A. ZSCHETZSCHE, Employee

UNITED PARCEL SERVICE, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 88-695593 SH


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, benefits are denied based on work with the employing unit. The employe is also ineligible for benefits based on work by other employing units beginning in week 38 of 1988, and until he has again worked within at least seven weeks in covered employment and has earned wages for work actually performed in covered employment equaling at least 14 times his weekly applicable benefit rate with the employer against whom benefits would be otherwise chargeable.

Dated and mailed February 3, 1989
150 - CD 1006 MC 630.14  PC 714.10 

/s/ Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


MEMORANDUM OPINION

In his petition for review, the employe argues that his actions in retaining the employer's C.O.D. monies do not constitute misconduct since they are the result of his "pathological gambling" and not of an intent to harm the employer. The employe states that "conduct over which one has no control, specifically a mental disorder not completely unrelated to alcoholism or drug abuse, and which does not adversely affect the interests of the employer, cannot be considered misconduct under Wis. Scats. Sec. 108.04 (5)."

The Commission disagrees. The employe's attempt to equate his gambling problem with alcoholism does not automatically result in a finding that his actions were nonvolitional, even if the link is made. The reason is that there is a lack of judicial and medical agreement as to whether alcoholics suffer an irresistible compulsion to drink. Both the Wisconsin and the United States Supreme Courts have rejected arguments which have attempted to equate alcoholism and lack of volition.

In Roberts v. State, 41 Wis. 2d 537, 543, 164 N.W. 2d 525, 527 (1969), the Wisconsin Supreme Court, in response to an argument that alcoholism is a per se defense to first-degree murder, distinguished between alcoholism and involuntariness:

Not every person commonly called a 'chronic alcoholic' is addicted to the point where he has a physiological or psychological dependency upon alcohol and his drinking is so involuntary and compulsive that one milt argue he is irresponsible for his acts.

In like fashion, the United States Supreme Court responded to the argument in Powell v. Texas, 392 U.S. 514, Reh'g. denied, 393 U.S. 898 (1968), that alcoholism is a defense to the crime of public drunkenness:

We are unable to conclude, on the state of this record or on the current state of medical knowledge, that chronic alcoholics suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both of these acts . . . .

While the Commission recognizes the distinction between these criminal cases and the issue on appeal here, they nevertheless are relevant to the Commission's position that an addictive behavior such as alcoholism or gambling is not automatically viewed as so involuntary as to relieve an individual from all responsibility for his actions. Such a determination must be made from the evidence in the record. Accordingly, the mere assertion by the employe of an addictive behavior is riot a sufficient basis upon which to find lack of intentional disregard for an employer's interests.

After reviewing the evidence, the Commission concurs with the Administrative Law Judge that despite the fact that the employe is a "pathological gambler," his conduct evinces an intentional and substantial disregard for the employer's interests. First, the employe testified that he was aware he was violating one of the employer's rules when he withheld the employer's C.O.D. monies for gambling purposes. Second, the employe knowingly and consistently violated this rule over a two to three year period. Third, why confronted by the employer about his withholding of the C.O.D, monies, the employe lied about how long he had been doing this. Fourth, despite the fact that the employe's psychologist writes that the employe "wants to get free of this compulsion", the employe admitted that he did not seek help for his problem during his tenure with the employer, even though he admitted having the problem for five years before he was discharged. (There is no evidence, therefore, that would establish the employe would have been unable to control his compulsion if he had sought help.) Finally, while the psychologist's report details some of the behaviors of a pathological gambler, it contains no medical evidence to support a finding that the employe lacked control over his gambling to the extent that he should be held not responsible for his conduct with the employer's money. Indeed, the psychologist noted that the employe "seems to be fully aware of the pathological nature of his behavior." Such awareness would seem to demonstrate more, rest less, volition or intent connected with the employe's conduct.

In view of the above factors, the Commission cannot conclude that the employe's acts lacked the volition necessary to a finding of misconduct. To the contrary, the employe's continued misuse of the employer's funds over a two to three year period, where he was aware of his problem, where he was aware of the important and strict work rule he was violating and where he neglected to seek help, reflect an intentional and substantial disregard for the employer's interests. Even if it were conceded, however, that the employe's conduct was not intentional, the employe's failure to seek help, coupled with his long-tern abuse of the employer's trust, demonstrate negligence of such magnitude as to constitute misconduct.

cc:
United Parcel Service, Inc.
Richard Hahn, Attorney at Law


Appealed to Circuit Court.  Affirmed September 18, 1989.

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