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

JAMES H HARIU, Employee

SWIFT TRANSPORTATION CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01201761EC


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 about five years as an over-the-road truck driver for the employer, a trucking and transportation business. His last day of work was during the week ending September 15, 2001 (week 37), when he was discharged by the employer.

The employee and his wife worked as team drivers for the employer. On the employee's last day of work the employee and his wife were leaving one of the employer's terminals in Gary, Indiana. The employee's wife was driving. One of the employer's managers received a report that the employee had been belligerent when the vehicle was being gassed up. The manager approached the employee and observed during conversation that he was slurring his words, staggering, and smelled of alcohol. The manager had the employee go to the office and the manager attempted to administer a saliva test but was not able to. The employee was then taken to a clinic where an alcohol test was administered. There was a positive result. The employee was discharged that same day.

The issue to be decided in this case is whether the employee's discharge was for 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' with in the meaning of the statute."

The employer established that the employee was intoxicated on his last day of work. The employee was under the influence of alcohol while at the employer's place of business, and acted belligerently toward another driver. The employer had the right to expect that the employee would not appear at its place of business in an impaired condition. The employee's appearance at the workplace in an intoxicated state and belligerent behavior did evince an intentional and wilful disregard of the employer's interests and of standards of conduct the employer had a right to expect of the employee rising to the level of misconduct connected with his work.

The commission therefore finds that in week 37 of 2001, the employee was discharged 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 $1,465.00 for weeks 38 through 41 and week 43 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).

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 37 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 the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,465.00 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 April 24, 2002
hariuja . urr : 132 : 1 :  MC 653.1

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner



MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. As reflected in her decision, the ALJ did not base her decision on credibility. The ALJ found that the employer failed to demonstrate that the employee was in pay status at the time of the incident. However, notwithstanding whether the employee was driving at the time of the incident, his conduct in reporting to the employer's facility in an intoxicated state was clearly contrary to standards of behavior the employer had a right to expect of the employee. The employer is not required to demonstrate that the employee was in pay status at the time of the incident in order to establish misconduct. The law only requires that the employer demonstrate that the employee's conduct was "connected" with his employment.

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.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2002/04/26