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

THOMAS M BAUMANN, Employee

POTTS TRANSPORT CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403007GB


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 about three years as a truck driver for the employer, an over-the-road trucking business. His last day of work for the employer was on June 26, 2002.

On or about June 26, 2002, the employer's president received a report that on June 25, 2002, the employee had been involved in a traffic accident while operating the employer's truck and while under the influence of alcohol. On June 27, 2002 (week 26), the employee called the employer. The employer asked the employee about the accident, and he wondered what he hit. He did not deny the accident, but just did not know what he hit. There was damage of about $4,000 to $5,000 to the employer's vehicle. The employer's president advised the employee that he would not be permitted to again work for the employer.

The employer had blood tests done, but as of the time of the hearing, had not received the test results from Missouri. At the hearing, the employer presented a misdemeanor complaint and request for warrant, that is not signed or notarized, misdemeanor information and a statement by the officer. The probable cause statement indicates that Officer Rhonda Shanika responded to I-44, eastbound at the 207-mile marker, to assist another officer. Upon speaking to the employee, she detected a strong odor of intoxicating beverages upon his person. Officer Shanika states that she arrested the employee for leaving the scene of a motor vehicle accident. She read the employee his rights. The employee failed a PBT, the alphabet test and Gaze Nystagmus Test. He refused to do any other field sobriety tests. She states that the employee told her he "purposely got drunk and drove the truck." The employee stated he was upset about the way the employer was treating him. The employee admitted that he had been accused of operating a vehicle while under the influence of alcohol on June 25, 2002. He had not had a trial as of the time of the hearing.

The commission has held that the firsthand observations of police officers and later put into a police report, can support a finding of misconduct. See Evan J. Evans v. Steel King Industries Inc., Commission Decision February 20, 2001; Boyer v. State, 91 Wis. 2d 647 (1979). In this case, the police report contains both observations of the officer, that the employee smelled like alcohol and failed to pass three field sobriety tests, and an admission by the employee that he purposely got drunk and drove the employer's vehicle because he was mad at the employer. The employee did indicate that he had been charged in Missouri, but that he had not yet had a trial. The employer's policy prohibited alcohol or drugs in company vehicles.

The first issue that must be decided is whether the employee quit or was discharged. On June 27, 2002, the employer's president instructed the employee that he would not be allowed to work for the employer for an indefinite period. The employer indicated it would consider allowing him to resume work following the outcome of the criminal proceedings. The employer gave the employee no assurance as to whether or when the employee would be allowed to return to work. This is an indefinite layoff, and severed the employment relationship. Consequently, it must be held that the employee was discharged.

The next issue 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 employee's actions, in deliberately drinking before driving the employer's vehicle because he was upset with the employer, subjected the employer to significant risk. The employee's actions demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 26 of 2002, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 27 through 52 of 2002, and 1 through 13 of 2003, amounting to a total of $12,636.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

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 26 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay $12,636.00 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700), issued on July 1, 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.

Dated and mailed April 11, 2003
baumath . urr : 145 : 1   MC 652.4  MC 662  PC 714.07 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner




MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not find the employee particularly credible. The employee did deny he was intoxicated and that he was in an accident. However, the employee did indicate that his truck was damaged. The commission finds that, given the records supplied by the employer, as well as his general lack of credibility at the hearing, that the employee intentionally drank intoxicating beverages before driving the employer's truck and that his actions in this regard amounted to misconduct.

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.


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


uploaded 2003/04/10