ELDEN B BARKEN, Employee 

EMMPAK FOODS INC, Employer

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:

The employee worked for the employer, a beef patty grinding company, for about one year and three months as a parts room clerk. His last day of work was January 15, 2001 (week 3), when he was discharged.

On December 20, 2000, the employee was crouched behind some boxes waiting to jump out and scare a female security guard. The employer's work rules prohibit harassment of a co-worker. As a result, the employee's employment was suspended for three days. On January 15, 2001, the employee brought a personal television set to work intending to watch it. He spent 20 or 25 minutes trying to obtain good reception.

The employee was discharged at least in part for the aforementioned incidents. The issue to be decided is whether the employee's actions constituted misconduct connected with his work. 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' with in the meaning of the statute."

The employee admitted that his actions in attempting to scare the security guard constituted a childish prank. While the employee maintained that he was friendly with the guard, that did not mean the employee's conduct was excused or that the guard would not be upset by such a prank. The employee's rationale for attempting to watch television was that there was downtime on his job. The employee noted that other workers listened to radios.

The employee had no basis for believing that it was acceptable to bring a TV into his place of employment with the intent to watch the TV. Such activity has no connection to his work and in no way benefits the employer. The employee never sought permission to bring a television to work. If the employee had downtime then it was his obligation to fill it with work related activity, to request additional work, or obtain specific permission to be paid for non-work related activity such as watching TV. The fact that workers listened to radios did not justify his actions. A worker can listen to a radio while doing work. Listening to a radio is substantially different than watching a TV in terms of one's ability to do other activities at the same time.

The commission therefore finds that in week 3 of 2001 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 $2943.00 for weeks 4 and 5 and weeks 17 through 25 of 2001, 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2001, 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 his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2943.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700), issued on January 17, 2001, is set aside. If benefits become payable based on work performed for other covered employers a new computation will be issued as to those benefit rights.

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 June 29, 2001
barkeel . urr : 132 : 1 : MC 655

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

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 2001/07/02