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

GLEN A BARCLAY, Employee

PERFORMANCE TRANSPORTATION CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02400183AP


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 for one and one-half years as a driver for the employer, a pallet transportation business. He was discharged from his employment on December 3, 2001 (week 49).

On October 11, 2001, the truck the employee was driving ran out of fuel which required roadside refueling and service at a cost of $200. On October 17, 2001, the employee left work without asking the logistics manager if there was additional work to be performed. There were deliveries yet to be made that day. When confronted the employee claimed that he had asked another individual if there was work to do and was told there was not. The individual he asked was not a manager and did not work in the employee's department. He received a warning for both incidents.

On November 7, 2001, the floor manager reported to the logistics manager that on the previous evening the employee refused the floor manager's directive to assist in unloading a truck. The logistics manager confronted the employee about the allegation. The employee denied that the incident occurred. The employee received a warning for insubordination.

On November 15, 2001, the employee delivered a trailer to a customer. While dropping the trailer he discovered a pin necessary to secure the landing gear was missing. He used a cotter key to secure the gear. The customer later telephoned the employer and reported that the trailer was in danger of tipping. The customer used a fork lift to keep the load level until one of the employer's workers could fix the gear. The employee did not discover that the pin was missing during his pre- trip inspection. The employee did not report the missing pin when he returned to the employer's facility after dropping the trailer. The employee received a warning for that incident and was placed on probation.

In October and November of 2001, the logistics manager sent a memo to all drivers stating that they were not to go into the back office where sales calls were made. The logistics manager informed the employee on more than one occasion that he was not to go into the back office. The employee continued to go into the back office after being instructed not to.

On November 30, 2001, the employee was scheduled to deliver a load at 6:30 a.m. At about 7:30 a.m., he contacted the employer to report that he had overslept. The logistics manager told him he could not drive a truck for the employer again until he answered two questions: why he kept having all the incidents and why they would not happen in the future.

The employer met with the employee on December 3, 2001 (week 49). The logistics manager asked the employee why he continued to go into the back office after being instructed not to. The employee maintained that he had questions he needed to ask of the sales staff. The logistics manager asked for one example of a question the employee needed to ask the staff. The employee could not come up with one. In response to the logistics manager's November 30, questions the employee indicated the incidents would not be repeated. The logistics manager had heard the same assurances from the employee in the past. The employer then discharged the employee.

The issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer.

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 commission finds the employee engaged in repeated negligent and intentional conduct that taken as a whole, demonstrated a willful and substantial disregard of the employer's interests. The employee did not conduct thorough pre-trip inspections to note the lack of fuel and the missing pin. The employee left work without permission and without confirming that there was no further work to be performed. The employee falsely testified at the hearing that he had asked the logistics manager if there was further work to be done. The employee did not present a convincing explanation for refusing the floor manager's directive to assist in unloading when confronted by the logistics manager. The employee should have alerted the employer immediately when he realized a part was missing from the landing gear. The employee did not do so and falsely testified under oath that he had done so. The employee provided no reasonable explanation for repeatedly violating the employer's directive not to go into the back office. The allegation that other drivers did it, did not excuse the employee's conduct once he was specifically told he could not do it. Finally, the employee did not have a valid reason for failing to timely begin delivery of the load on November 30.

The commission therefore finds that in week 49 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 $1,752.00 for weeks 49 through 52 of 2001, and weeks 1 and 2 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 49 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 $1,752.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on December 7, 2001, is set aside. If benefits become payable based on other 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 June 19, 2002
barclgl . urr : 132 : 1   MC 640.01 MC 658 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner



MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The ALJ indicated that she believed the employee was lying when he claimed to have asked the logistics manager if there was more work to be performed on October 17 and when he claimed to have reported the missing pin to the logistics manager. The commission agrees with the ALJ's credibility assessment. The ALJ further indicated that she did not believe that the employee's actions in going into the back office were a factor in his discharge. The commission disagrees. The employee acknowledged that he was told not to go into the back office. The employer mentioned the employee's continued trips to the back office at the time of discharge.

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 2002/06/21