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

DANA M HOPKINS, Employee

ULTRA MART FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04602319WB


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 six weeks as a deli clerk for the employer, a firm which operates food stores. Her last day of work was May 21, 2003, and she was discharged on May 29, 2003 (week 22).

The employer discharged the employee for failing to follow the employer's drug and alcohol policy. The employer's policy provides for testing upon evidence of the odor of alcohol. The policy provides for testing by Breathalyzer and, if necessary, blood specimen, in the case of suspicion of alcohol use. A worker is subject to discharge for actions resulting in an invalid sample, failing to cooperate with the collection process or refusing to be tested.

On May 21, 2003, the employee reported for work with a strong alcoholic odor from her breath, with a very red face and her eyes glazed. The employee was taken for alcohol testing. The employee failed to provide sufficient air to allow for a Breathalyzer test. The employee would take a deep breath with her cheeks puffed out, then blow the air out of her nose instead of into the Breathalyzer. The employee then refused to submit a blood specimen asserting a strong aversion to needles. The employer discharged the employee for failing to cooperate with the collection process and refusing to be tested.

The issue to be decided is whether the employee was discharged for misconduct connected with her work for the employer. 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."

First, the commission credits the employer's testimony as to the employee's condition on May 21, 2003. While the employee maintained that her boyfriend threw alcohol on her clothes, the employer noted at the time of the incident and testified at the hearing that there was a strong odor of alcohol on the employee's breath. Second, the commission credits the employer's description of the employee's efforts to provide air for the Breathalyzer test. That is, the employee intentionally did not blow into the Breathalyzer. Finally, the employee's less than persuasive explanations for her condition on May 21 and failure to provide a Breathalyzer sample, leads the commission to question the employee's claim that she refused to provide a blood sample because of an aversion to needles. The employee's actions constituted a violation of the employer's drug and alcohol policy and demonstrated an intentional disregard of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 22 of 2003 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $384.00 for weeks 14 through 16 of 2004, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1). (1)

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 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 22 of 2003, 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 $384.00 to the Unemployment Reserve Fund.

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 October 29, 2004
hopkida . urr : 132 : 1 : MC 652.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. Although indicating that the employee presented an unlikely scenario, the ALJ stated that he found the employee somewhat credible. The ALJ did not impart any demeanor impressions of the witnesses that led to or factored into his findings and conclusions.

 

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: Ultra Mart Foods, Inc. (Oshkosh, Wisconsin)



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Footnotes:

(1)( Back ) Although the employee requalified as of the first week claimed, week 4 of 2004, the maximum benefit amount is reduced as a result of the finding of misconduct, so that the employee now exhausts benefits with a reduced payment of $95.00 for week 14 of 2004, and no benefits are due thereafter.

 


uploaded 2004/11/03