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

LUKE W PFEIFER, Employee

GREAT LAKES SERVICES LLC (DE), Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05402750SH


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 sixteen months as a guest services director. His last day of work and discharge was September 2, 2005 (week 36).

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's employment.

In July of 2005, a worker complained to the employer that the worker was not being paid overtime hours due him.

On August 17, 2005, the employer asked the employee why he had edited several of his staff's timecards on various days between January of 2005 and July of 2005. The employer pointed out to the employee that all such edits reduced the worker's compensable work times.

The employee researched the matter by referring to old schedules and notes that he kept and responded the following day with a detailed reply to all of the employer's questions. The employee's answers essentially amounted to the same response in all cases: the affected workers had not actually worked the hours in question.

The employer continued to investigate the matter, and in doing so spoke with each of the workers who sustained time reductions. Based on those conversations, the employer concluded that the employee had never consulted with the workers before editing their time cards, which it deemed to be a major work rule violation. As a result, the employer discharged the employee on September 2, 2005 (week 36).

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 insurance 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 is not to be deemed 'misconduct' with in the meaning of the statute."

The employer asserts that the employee was discharged for misconduct for editing a worker's time card without consulting with the worker first. The commission agrees. A reasonable person in the employee's position would have consulted with the worker before editing the worker's time. The employee actions in editing JP's hours on May 31 reduced JP's overtime from 10.92 hours to 1.28 hours. The employee reduced the hours despite the fact that he had not been present at work on May 31 to verify that JP had not worked, that the schedule showed that JP had switched shifts with another worker and worked on May 31, and that JP punched in and out for work on that date. In addition, the employee's explanation to the employer for editing JP's hours on May 18 and 31 was that JP was not scheduled to work and he "assumed" that someone else grabbed JP's card. Putting aside the fact that the employee apparently did not investigate who punched JP's card and therefore should have been paid for those hours, it was irresponsible of the employee to make such assumption and not verify the accuracy of his assumption prior to reducing a subordinate's work time, and thus the subordinate's pay.

The commission therefore finds that in week 36 of 2005, 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 $1,316 for weeks 37 through 40 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 36 of 2005, 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 $1,316 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 February 10, 2006
pfeiflu . urr : 132 : 1 :   MC 689

/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. The ALJ indicated that there was nothing in the demeanor of the witnesses that led to his credibility determination. The ALJ indicated that he found the employee's explanations for his actions to be logical. The commission has reversed the ALJ's decision for the reasons set forth above.

cc: Jean M. Gallimore


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