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

GARY A FREE, Employee

CITY OF MANITOWOC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04401660MN


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 32 years for the employer, a municipality. Most of his employment was as a wastewater treatment facility operator. His last day of work was March 17, 2004 (week 12). He met with city officials and a union representative on March 22, 2004 (week 13) to discuss his conduct at work on March 17. At the meeting, a city representative told him and his union representative that he would have the option of resigning, or the employer would discharge him. He chose to submit a resignation notice.

The employee had no real choice of continuing his employment. If he had not resigned, the employer would have discharged him. For unemployment insurance purposes, he was discharged. The issue is whether he was discharged for misconduct connected with his work.

The agreement between the employer and the employee's union stated that a worker could be discharged with no warning notice if the cause of discharge was dishonesty, drunkenness, or drinking while on duty, recklessness, endangering others while on duty, or the carrying of unauthorized passengers in city-owned vehicles while on duty. The employee was a signatory to that agreement.

The employee consumed an unknown quantity of whiskey on March 17, before reporting for work. He did not know when he stopped drinking before reporting for work at 3:00 p.m. After reporting for work, the employer required the employee to undergo an alcohol test. His breath alcohol concentration was .134 percent at 5:05 p.m.

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 had a BAC of  .134 at 5:05 p.m. on March 17. Using a retrograde analysis, the employee appeared for work with a BAC of  .164.  (1)  The commission finds that the employee reported for work while under the influence of alcohol, intoxicated, and in a state of drunkenness. The commission finds that it strains common sense to find, notwithstanding the employee's outside appearance or lack of evidence of the employee's appearance, that the employee's judgment, coordination, muscular control, and/or reflexes, were not adversely affected by the employee's alcohol consumption.

The commission therefore finds that in week 13 of 2004 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 $4,650.00 for weeks 16 through 24, 28 and 29, and 51 and 52 of 2004, and for weeks 1 through 4 of 2005, 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. 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), departmental 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, by commission or omission, 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 departmental 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 departmental 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 13 of 2004, 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 $4,650.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on March 24, 2004, 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 balancing account.

Dated and mailed February 10, 2005
freegar . urr : 132 : 1 : MC 653.1

/s/ James T. Flynn, Chairman

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. The ALJ indicated that in general he found the employee to be a believable witness. The ALJ did not impart any specific demeanor impressions of the employee that led to such credibility determination. However, based on the employee's admission that he was drinking unknown quantities of alcohol prior to reporting to work, that he was intoxicated on that day, and that he had tested at what would have been a .16 at the time of his arrival at work, the commission finds his conduct demonstrated an intentional and substantial disregard of the employer's interests.

There is no expert evidence in this record that the employee has a functional tolerance to alcohol or that he was unable to abstain from drinking or refrain from reporting for work after drinking. The anecdotal testimony offered by the employee regarding the employer's treatment of other workers who appeared for work after drinking alcohol does not establish that the employee was treated unfairly. The employee was discharged pursuant to an agreement that he himself signed. The objective results of a breath alcohol test are a reasonable basis upon which to make a determination as to whether an employee was violation of the agreement. That agreement put the employee on notice that he could be discharged without warning for drunkenness on duty. Even absent a work rule, a standard of behavior that the employer had a right to expect of an employee was that the employee not appear for work drunk.

 

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: Neil Rainford



Appealed to Circuit Court. Affirmed December 5, 2005.  [Circuit Court decision summary]

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Footnotes:

(1)( Back ) See Rowe v. Walker Stainless Equipment Co. Inc., UI Dec. Hearing No. 03001017BO (LIRC Dec. 19, 2003).

 


uploaded 2005/02/14