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

KENNETH E WILSON, Employee

THE COPPS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02401174AP


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 was a third-shift night stocker for about one year for the employer, a grocery store. The employer's rules, of which the employee received a copy, forbid the consumption, use, or possession of alcoholic beverages or controlled substances on the employer's premises. The policy also provided that no employee should report for work or even enter the employer's store for any reason if under the influence of alcohol or drugs.

The employee had chronic conditions including asthma, bronchitis, chronic obstructive pulmonary disease, arthritis in his leg, and glaucoma. His physician gave him medical restrictions limiting his work activities on a periodic basis.

The employee began work at 8:00 p.m. The employee drank approximately five or six beers, as he frequently did, on February 14, 2002. He concluded drinking beer at sometime between 1:00 p.m. and 2:00 p.m. Shortly after he reported to work that evening, the grocery manager was watching the employee on a security camera. The manager noted on the employer's "Drug/Alcohol-Reasonable Cause Observed Behavior Form" that the employee was swaying when he worked and that he evidenced a lack of coordination. The manager met with the employee immediately to investigate the matter. The manager smelled alcohol on the employee's breath and asked him if he had been drinking. The employee informed the manager about the beers he had drunk that day. The manager told the employee that he was required to submit to a Breathalyzer test. The employee indicated that he did not believe he would pass a Breathalyzer test. The employee signed the required consent form and submitted to the test. The results indicated an alcohol level of .085 at 10:06 p.m. and .090 at 10:23 p.m. When the store manager received the results, he notified the employee on February 15, 2002 (week 7) that he was discharged for violating the employer's "Drug/Alcohol Free Workplace" policy.

The issue to be decided is whether the employee's actions, which led to his discharge, constituted 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 employee reported for work while still under the influence of alcohol. The alcohol the employee consumed before work affected his balance and coordination while at work. The Breathalyzer results further support the conclusion that it was his alcohol consumption, and not medication he was taking or his medical conditions, that impaired his movements. The employee was aware that he was subject to discharge if he appeared for work under the influence. The employee's comment to the employer that he did not believe he would pass a Breathalyzer indicates that the employee was aware that the alcohol he had consumed was still affecting him. The employer had a right to expect the employee to appear for work unimpaired by the effects of alcohol. The employee's conduct in appearing for work while under the influence of alcohol evinced an intentional and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 7 of 2002 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 $5,334.00 for weeks 8 through 35 of 2002, 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 7 of 2002, 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 $5,334.00 to the Unemployment Reserve Fund. The initial benefit computation (form UCB-700) issued on February 19, 2002, is set aside. If benefits become payable based on work performed for other 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 September 12, 2002
wilsoke . urr : 132 : 1 : MC 652.5  MC 653.1

/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 her impressions of witness credibility and demeanor. The ALJ indicated that credibility was not a factor in her decision. The commission notes that in reversing the ALJ it credited the grocery manager's testimony as to his observations of the employee on his last day of work.

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.

cc: 
Copps Corporation (Stevens Point, Wisconsin)
Continental Consultants
Copps Food Center (Appleton, Wisconsin)


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uploaded 2002/09/30