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

JENNIFER L BLOSS, Employee

DELTCO OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05201923EC


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 three years and two months, most recently as a forklift driver for the employer, a plastic recycling business. Her last day of work was September 7, 2005 (week 37). She was discharged the following day.

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

The employer had a policy that prohibited the use or possession of intoxicants or controlled substances on company property and during work hours. Working while under the influence of intoxicants or controlled substances was a forbidden and unsafe work practice. Another policy prohibited the unauthorized possession, use or being under the influence of alcohol while on company property or outside the company premises while on company business. Drinking or being under the influence of alcoholic beverages while on company premises or while conducting company business was cause for termination of employment. The employee received a copy of the policies during the term of her employment.

The employee worked on the second shift from 3:00 p.m. to 11:00 p.m. On September 2, 2005 (week 36), she went with two other workers to a bar during her shift. The employee went to the bar during her paid lunch hour, but extended her lunch. The employee was accompanied by two co-workers. The employee and her co-workers had done this on several occasions in the past. A co-worker, who worked a different shift, went to the bar and saw the employee there. He was surprised because the employee and her co-workers were supposed to be at work. The employee asked the co-worker not to say anything about the situation. On the following Monday, the first shift worker told his supervisor about the incident. When the president of the company questioned the employee about the incident, she denied that she had been drinking in the bar but admitted that she had been in the bar to speak to another individual. At the hearing, the employee denied having been in the bar. At the remand hearing, the employee still denied that she had been in the bar.

The employer argued that it discharged the employee for misconduct. The commission agrees.

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

The employee was a forklift driver and knew or should have known that she could not use alcohol during work hours. The employer's policy forbidding such use was reasonable. The employee never made the argument that she believed that it was acceptable to be at the bar or to drink during her lunch break. In fact, at the hearing she denied even being at the bar. The employer paid the workers for their lunch time and the two co-workers indicated that they understood the policy to forbid them from going to the bar to drink during their lunch. Furthermore, testimony at the hearing established that the bar was ten minutes away and that the workers were at the bar for about 20 minutes. Therefore, the employee exceeded her break to go to the bar to drink beer. The employee's actions were intentional and demonstrated such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 37 of 2005, the employee was discharged 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 $243 for each of weeks 39 of 2005 through 11 of 2006, amounting to a total of $6,318.00; for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause although the over payment 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 37 of 2005, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $6,318.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on September 8, 2005, is set aside. If benefit payments become payable based on other 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 7, 2006
blossje . urr : 145 : 2  MC 651.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission reverses the ALJ based in large part on evidence obtained at the remand hearing that was not available to the ALJ when she made her decision.

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.


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