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

TIMOTHY A SEACH, Employee

UNITED PARCEL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03004424JV


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 has worked about ten years for the employer, a package delivery service. Most of those years he worked part time, unloading trucks and sorting packages. However, in August 2002 the employer hired him as a full-time package delivery driver. Because he was new to the position he was working as a fill-in or substitute driver rather than being assigned to a designated route of his own.

On May 7, 2003, the employee was assigned to deliver packages in the Beloit area. He had a greater than usual number of packages to deliver. Due to no fault of his own he got behind in completing his deliveries. In the afternoon he had to stop making deliveries in order to pick up packages from the employer's regular business shippers.

The employee believed that he was required to return to the Janesville sorting center by 7:30 p.m. with the packages he had picked up so that they could be shipped out that evening. About 6:45 p.m. he telephoned the dispatcher to report that his completion of his deliveries and return before the deadline "would be tight." He asked if another driver could help him complete the route and was told no one was available.

The employee returned to the sorting center before 8:00 p.m. with six packages. He reported that he had attempted delivery to those six customers between 7:25 p.m. and 7:35 p.m. but had been unsuccessful because the customers were not home to accept the packages.

On May 8, 2003, the employer's center manager reviewed the employee's delivery report. Since the employer did not require that a person be available at the residences where the employee had reported having been unable to make the six deliveries, the center manager investigated by driving between the residences himself and contacting several of the residents. The center manager discovered that it would have taken at least 40 minutes to make the six deliveries.

On May 9, 2003 (week 19) the center manager asked the employee for an explanation. He admitted that he had not attempted to make the deliveries and that he had falsified his delivery report. The employer then notified him that it was terminating his employment.

Department records show that the employee applied for unemployment benefits on May 9, 2003. Thereafter, he was paid benefits for week 19 of 2003, totaling $166.00.

Following the termination of his employment by the employer, the employee's labor union interceded on his behalf. On May 14, 2003 (week 20) the employer agreed to reduce his discharge to a three-day disciplinary suspension without pay and without loss of seniority.

The initial issue to be decided is whether the employee's employment was suspended for good cause connected with his work or terminated for misconduct connected with his work.

In Cornelius Hall v. Milwaukee Transport Services Inc., (LIRC Jan. 11, 1996), the commission held that it will treat a discharge that at the time of hearing has been converted into a suspension without pay, and without loss of seniority, as a statutory suspension under Wis. Stat. § 108.04(6). (1)   The facts of this case meet the conditions set forth in Hall for finding that the employee's discharge was converted to, and should be treated as, a suspension of his employment.

The second issue is whether the employer suspended the employee's employment for good cause connected with the employee's work within the meaning of Wis. Stat. § 108.04(6). "Good cause" can be found in cases in which there has been a single instance of negligence or poor judgment, although there must be at least some degree of fault or blameworthy conduct on the part of the employee. See Mitchell v. Milwaukee Public Schools, UI Dec. Hearing No. 90604770MW (LIRC Nov. 23, 1990).

The employee claimed that on prior occasions he had been told by supervisors that if he could not complete his route to report that he had attempted delivery of the remaining packages and had been unsuccessful. He claimed that he had merely been following that management directive when he completed his delivery report for May 7, 2003. However, he knew or should have known that the employer would have made some arrangement to deliver those six packages if he had reported he was unable to complete the task. Either he would have been sent out again or a manager would have been directed to go. He never notified the employer that he could not complete the route and instead, falsified his delivery report, thereby preventing the employer from meeting its goal of delivering all packages. Finally, one supervisor telling him to break the rules did not constitute an agreement by the employer that he could falsify his delivery reports every time thereafter. On May 7, 2003, he was not following the directive of any manager when he falsified his delivery report. The employee engaged in culpable behavior that justified the suspension of his employment in week 19 of 2003.

The commission therefore finds that in week 19 of 2003, the employee was not discharged from his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 19 of 2003, the employee's employment was suspended for good cause connected with his work within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that the employee was paid benefits in the amount of $166.00 for week 19 of 2003, 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).

DECISION

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits in week 19 of 2003. The employee is eligible for benefits thereafter, if he is otherwise qualified. He is required to repay the sum of $166.00 to the Unemployment Reserve Fund.

Dated and mailed March 2, 2004
seachti . urr : 132 : 1 :  MC 676  MC 676.2

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


cc: United Parcel Service, Inc. (Elm Grove, Wisconsin)


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Footnotes:

(1)( Back ) In Hall, the commission considered and rejected the contention that converting a discharge into a suspension would be tantamount to allowing parties to dictate an employee's eligibility for benefits. The commission stated: 

The best argument against "converting" discharges to suspensions, perhaps, is that parties may not determine unemployment compensation benefit eligibility by contract. Instead, eligibility is to be determined by statute. Roberts v. Industrial Commission, 2 Wis. 2d 399, 403 (1957). Thus, the employer argues, a discharge should not be automatically converted to a suspension for unemployment compensation purposes merely because the parties agree to treat it that way. 

Of course, the Roberts rule does not mean that the commission must ignore contractual agreements. Rather the commission must look at what actually happened and determine whether an employe is eligible under the statutes. In this case, what actually happened is that the parties agreed to reinstate the employe with seniority after a disciplinary suspension, and the employe actually returned to work for the employer in his old duties. Consequently, the separation in this case should be treated as a disciplinary suspension under sec. 108.04 (6), Stats. A different situation might arise if the parties had agreed that the claimant would return to work as a new employe with no seniority, but that is not the case here. 

 


uploaded 2004/03/08