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

TRAVIS M SCHRAGE, Employee

BEST BUY STORES LTD PTRSHP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02401440AP


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 two years and three months, most recently as a mobile installer for the employer, an electronics retailer. His last day of work was on February 25, 2002 (week 9), when he was discharged.

The employer had a "tobacco-free environment" policy. Smoking was absolutely prohibited inside the employer's facility. Smoking was prohibited outside on the employer's property unless there was a sign stating that smoking was permitted in the area. The policy specifically indicated that smoking was prohibited near employee entrances, exits and other locations where employees might interact with other workers, customers, or outside persons. Workers were instructed to contact human resources if they were aware of instances in which the policy was not being followed.

On February 12, 2002, the employer's sales manager saw the employee walking inside the installation bay to the outside with a cigarette in hand. When the employee saw the sales manager he walked out the door. The sales manager approached the employee and asked why he was smoking back there. The employee replied that he was outside so it was okay. The area in which the employee was standing was not a designated smoking area. The sales manager issued a warning to the employee that stated that if he did not immediately change his behavior he would be discharged.

On February 17, 2002, the sales manager received a complaint from a worker in the appliance department, which was adjacent to the installation bay, that it smelled like smoke. The sales manager observed the employee smoking in the corner of the installation bay. The sales manager discharged the employee for again violating the employer's tobacco-free environment policy.

The issue to be decided is whether the employee was discharged 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 employee maintained that he was smoking outside the installation bay door on both February 12 and February 17. The employee admitted that doing so was a violation of the employer's handbook. The employee asserted that at least eight other people smoked in that same area, including management. The employee contended that he believed that such conduct set precedent, which overruled the rules in the handbook. The commission does not find the employee's justifications for his conduct to be persuasive. The employee knowingly violated a reasonable employer rule on two occasions, the second only five days after being warned about his conduct. The sales manager specifically put the employee on notice that he was not to smoke in the area in which he was found on February 12. The employee knew that smoking was permitted in only designated areas and that outside the installation bay was not a designated smoking area. The employer had a right to regulate smoking on its property and had the right to expect the employee would adhere to such reasonable regulations. The employee's repeated violation of the employer's policy evinced an intentional and substantial disregard for standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 9 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 $1,600.00 for weeks 10, 11, and 13 through 18 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 9 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 $1,600.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on March 5, 2002, 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 September 27, 2002
schratr . urr : 132 : 9 : MC 687  MC 696 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ who presided at the hearing in this matter. The ALJ indicated that she credited the employee's testimony that he was smoking outside the installation bay, and that others including members of management engaged in the same conduct. However, the employee was specifically warned that such conduct was not permitted. Even accepting that management personnel violated the employer's policy, the employee was notified that his conduct was not acceptable and that a future violation would not be tolerated. Further, the employee could have taken any complaint about unequal enforcement to human resources.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.

cc: 
BBC Properties, Co.
Continental Consultants, Attn. Wray Vasser

 


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


uploaded 2002/10/04