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

PETER F MANDL, Employee

M B T I INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600108MW


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 approximately three years as an instructor for the employer, a technical school. His last day of work was November 15, 2001 (week 46).

On October 31, 2001 (week 44), the employer hosted a Halloween event with a guest speaker. At the event, the speaker notified the employer's director of education that the employee appeared intoxicated. When the director spoke with the employee, she noticed that his eyes were red, he slurred his speech, and he smelled of alcohol. He told the director that he was just tired. The director discussed the incident with him further on November 9, 2001 (week 45), and later issued him a written warning.

On November 15, 2001 (week 46), the director met with the employee in his office and noticed that his eyes were red and his speech slurred. He told the director that he was battling an illness, had a bad cold, and was taking cold medication. Because the director was of the opinion that he was intoxicated, she suspended him and advised him that a third similar incident would result in discharge.

Later in the day on November 15, 2001 (week 46), the director was advised that the employee appeared intoxicated in his classroom sometime between November 12 and 14, 2001 (week 46). The director decided to meet with the employee when he returned from his suspension.

On November 21, 2001 (week 47), the director met with the employee and discussed the aforementioned incidents. She advised him that he was subject to discharge but that she would accept his resignation. He questioned whether a resignation would affect his ability to recover unemployment insurance benefits, but the director did not know the answer to his question. The director presented him with a memorandum that she had typed that stated she would accept his resignation effective November 28, 2001 (week 48). He signed the memorandum.

The issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment insurance benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employer initiated the separation from employment. The employer was not going to allow the employee to continue his employment. The commission has previously held that when an employee is only given the choice of how to characterize the separation, but not whether there will be a separation, it is not the employee's decision to become unemployed. See, Fisher v. Black & Decker US Inc., UI Hearing Dec. No. 01000407JV (LIRC Dec. 11, 2001).

The next issue to be decided is whether the employee's discharge was for 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."

In this case, the employee appeared intoxicated at work or work-related events on three occasions within approximately two weeks. The employer had a right to expect that the employee would appear for work sober. The employee's claim that he was not intoxicated on the days at issue was not credible. The employer need not have a rule prohibiting the employee's conduct, as any employer has a right to expect that an employee will not appear for work multiple times in an intoxicated condition.

The commission therefore finds that in week 47 of 2001, the employee was discharged for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The administrative law judge's decision is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 47 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 weekly benefit rate which would have been paid had the discharge not occurred. The initial benefit computation (UCB-700) issued on November 30, 2001, is set aside. If benefits become payable based on work performed in other covered employment 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 April 5, 2002
mandlpe . urr : 132 : 1 MC 629

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

 

MEMORANDUM OPINION

The employee argues in his petition that he was discharged by the employer and did not quit his employment. The commission agrees with the employee. However, the commission further finds that the employee's discharge was for misconduct connected with his work. The finding that the employee was discharged for misconduct results in more stringent requalifying requirements. Further, all wages earned by the employee from the employer before the discharge will be removed from the employee's base period when determining benefit eligibility for his current and any future claim.

cc: Continental Consultants


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