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

STEVEN D FEDIE, Employee

ASHLEY FURNITURE INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01200325EC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 5 of 2001, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,121 to the Unemployment Reserve Fund.

Dated and mailed June 19, 2001
fediest . usd : 105 : 8  BR 335.04 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employee asserts that he should not have to repay the unemployment benefits he received, that he was fully forthright as to the matters in dispute, when the department adjudicator interviewed him in connection with his claim. The employee is correct that he was forthright, but the law still does not allow for waiver of recovery of the overpayment in this instance. Such waiver can occur only where there has been departmental error in the initial payment of benefits. In the present case, on the other hand, the employee was first found eligible for unemployment insurance because the adjudicator's judgment was that the employee's actions were not so severe as to constitute misconduct for unemployment insurance purposes. The judgment of the administrative law judge and commission, on the other hand, is that the employee's conduct was sufficiently severe to constitute misconduct. In other words, there is simply a difference in judgment involved here, and not an error by the adjudicator such as would allow waiver of recovery of the overpayment.

The employee also asserts that the employer has an anti-harassment policy, but that his supervisor was harassing him with regard to the timing of his projected quit of employment. That kind of harassment does not fall within the normal anti-harassment policy, however; rather, those policies deal with such matters as sexual harassment or racial discrimination. In any event, the employee's response to the supervisor's questioning went beyond the line and would constitute misconduct even were the supervisor's questioning somehow inappropriate. As the administrative law judge reasoned, an employer need not abide the kind of abuse of supervisory personnel the employee directed to his supervisor.

For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: Ashley Furniture Industries, Inc. - St. Louis, MO


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uploaded 2001/06/21