Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Gary L. Lueck (Hrg. No. 97400065AP) v. LIRC, DWD UI Division and Fulton Performance Products, Inc.,
Case 97-CV-372 (Wis. Cir. Ct., Marathon Co., February 28, 1998 (Decision) and March 20, 1998 (Supplemental Decision)

Digest Codes: MC 640.12   MC 658    BR 335.04

The employe, a machine operator, had in the past been disciplined for insubordination and "work slowdowns" as a protest of wages and a plea for recognition of his past work performance. In November 1996, after he became dissatisfied with maintenance on his machine, he spent very little time in actual production on two successive days and showed excessive time on set-up, self-maintenance and other non-production categories on his production tickets. He was discharged. The Appeal Tribunal and the Commission both found that he had intentionally withheld his services and had been discharged for misconduct. Commission held that overpayment of benefits could not be waived because it did not result from department error. On appeal, the employe argued that his low production on the days in question was not intentional. He also argued that the refusal of the Appeal Tribunal to receive into evidence documents he offered showing his daily production for the previous year, was error. Finally, he argued that he had not been given an adequate opportunity to be heard on the question of whether any overpayment of benefits should be waived.

Held: In its Decision issued on February 28, 1998, the Court affirmed the decision that the employe was discharged for misconduct. The employe's arguments as to the admission of certain exhibits are rejected; among other things, the court notes that the years' worth of good production records preceding the days in question only shows the lack of any reasonable justification for the low production on the days in question. In addition, the court rejects employe's objections to the ALJ's conduct of the hearing, which was that the ALJ did not assist him in the development of his case. An ALJ is not going to be effective as an attorney-advocate for a party; they are required to be fair an impartial, which is how the hearing here was conducted.

The Court's February 28, 1998 Decision had remanded the matter for further proceedings on the theory that there had been inadequate consideration of whether the overpayment could be waived on the "alternative" grounds that it was not the fault of the employe. The Court had read the applicable statute as if this could be an independent ground for waiving overpayment even in the absence of department error. Subsequently, the commission advised the court that the applicable statute required waiver only if the overpayment were not the fault of the employe and there was department error. In its Supplemental Decision of March 20, 1998, the Court acknowledged this, rescinded its Remand Order, and affirmed the decision that overpayment could not be waived. The court noted that the employe's argument that he was not given an adequate opportunity to be heard on this issue was not supported by any theory as to what evidence he could have introduced to support waiver. Additionally, the Court discusses the Topp decision and the limitations on the authority of either the Court or the Commission to forego collection of an overpayment.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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