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

CHRISTOPHER M SOBCZAK, Employee

THE COPPS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02002711WR


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 nearly 16 years in several positions in one of the employer's supermarkets. For about his last eight years he was the store's produce manager. His last day of work was March 14 and the employer discharged him on March 15, 2002 (week 11). He then began collecting unemployment benefits.

On March 5, 2002, the employee was scheduled to attend a food show at a hotel in the same city as his store to place orders with various vendors and wholesale representatives. He also was required to do some preparatory paperwork before placing orders. He was out very late at a food show social function the night of March 4, and was physically present at the food show only between 12:15 p.m. and 2:45 p.m. on March 5. He later gave a note to the payroll timekeeper reporting work hours associated with the food show that day from 9:00 a.m. to 3:00 p.m. When the loss prevention manager questioned him on March 14 concerning his claimed work hours for March 5, he wrote a statement admitting he was physically at the show for only two and one-half hours. His statement admitted that his reported hours for March 5 were somewhat inaccurate, but asserted that he had worked on the preparatory paperwork at home for an hour early in the evening on March 4 and again from 9:00 a.m. to 11:45 a.m. on March 5.

In early 2001, the employee's supervisor had told him and other key personnel that hours claimed for work away from the store would not be paid unless the off-premises work was approved in advance. This occurred after the employee had requested pay for time spent preparing a special report at home, and had taken the matter to his manager's superiors when his manager had denied his pay request. The employer considered that he had violated this directive by not obtaining advance approval to prepare the food show paperwork at home. It discharged him for "falsification of payroll time records." Its termination notice stated that the employee "requested pay for some time that was not worked, and failed to get approval per store policy for other time."

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's 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 commission finds that the employee submitted false documentation in an attempt to receive pay to which he was not entitled. The employee had received a previous warning that he could not seek payment for work performed at home without advance permission. The employee gave no indication when submitting his hours that the majority were performed at home and performed over a two-day period. The employee's note to payroll specifically requested payment for March 5 for the hours of 9:00 a.m. to 3:00 p.m. Even if the commission accepted the premise suggested in the employee's testimony, which it does not, that he had received general permission to perform work away from the store, such permission did not include March 4. Finally, the commission infers from the record that the reason the employee did not attend the food show in the morning on March 5, and was not performing work at home that morning, was because he had been out drinking until at least 3:30 a.m. on March 5.

The commission therefore finds that in week 11 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 $6,480.00 for weeks 12 through 15 and 17 through 32 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 11 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 $6,480.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on March 18, 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 February 19, 2003
sobczch . urr : 132 : 1 : MC 630.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he did not believe that the employee was trying to cheat the employer. The ALJ did not relate any specific demeanor impressions that he had of the witnesses. The commission disagrees with the ALJ's credibility assessment for reasons set forth above.

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.I. 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: 
The Copps Corp. (Stevens Point, Wisconsin)
Attorney R. John Symonds
Attorney William G. Weiland


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uploaded 2003/03/03