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


BRENDA L MASSIO, Employe

WITTS PIGGLY WIGGLY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98401840AP


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about five months as a deli helper for the employer, a grocery store. She was discharged on April 7, 1998 (week 15).

In late February of 1998, the employer's owner conducted a manager's meeting at which he announced that he intended to "crack down" on eating on the job in unauthorized areas. The employer's handbook calls for all consumption of food to occur in the employe break room.

On March 13, 1998, the store manager saw the employe eating a doughnut in an unauthorized area. He instructed her to stop eating, and told her that the employer intended to enforce its policy against eating outside the employe break room. The employe apologized for her conduct. The manager went back to the employe later that same day and informed her that further violations of the policy would result in her discharge.

On April 4, the weekend supervisor observed the employe eating two strips of bacon in the work area. The employe did so because she felt a petit mal seizure coming on, and thought eating some food would help. When the bacon did not make her feel better, she went to the supervisor and reported that she would have to leave work due to illness.

On April 7, the store manager was told of the incident involving the employe's consumption of bacon. He went to the deli area, and saw the employe, who was standing directly behind the hot case, place something "brown" in her mouth. He approached her, and asked her what she was chewing. The employe responded that it was a cough drop. The manager stated that it did not look like a cough drop. The employe continued to chew and swallow as the manager spoke to her. The manager asked the employe to show him the cough drop and she refused. The manager asked her to spit the cough drop into a napkin. She had already swallowed what she had been chewing, but she made a "spitting motion" and then showed the manager a napkin with nothing in it. The manager then asked her to come to his office.

In the office, the manager asked the employe if she had been eating bacon on April 4. She admitted that she had, and explained about her medical condition. The manager asked again what the employe had been eating on that day. The employe finally admitted that she had been eating an onion ring. The manager notified her that she was being discharged for violation of the employer's policy against eating in unauthorized areas.

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

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' within the meaning of the statute."

The employer had a right to prohibit consumption of food in other than authorized areas. The employe was notified that the employer was enforcing its policy against eating outside the break room. The employe was further notified that further violations of that policy would lead to termination. Less than one month after receiving such notice and warning the employe again violated the employer's policy. The employe has offered no credible exculpatory explanation for her behavior. The employer had a right to expect that the employe would abide by its reasonable work rule. The employe engaged in a deliberate violation of that rule. The commission finds that the employe's actions constituted a wilful and substantial disregard of standards of behavior the employer had a right to expect of her.

The commission therefore finds that in week 15 of 1998 the employe 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 employe was paid benefits in the amount of $812.00 for weeks 25 through 42 of 1998, for which she was not eligible and to which she 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.

Wisconsin Statute § 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 employe. 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). Rather, the commission has reached a different crediblitiy determination and legal conclusion than made by the administrative law judge.

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 employe 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 employe is ineligible for benefits beginning in week 15 of 1998, and until seven weeks elapse since the end of the week of discharge and the employe 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. She is required to repay the sum of $812.00 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 employe 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 28, 1998
massibr.urr : 132 : 1 MC 687

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ. The ALJ believed the employe was eating an onion ring but admitted to doing so because she did not believe she would be discharged. However, the employe maintained at the hearing, under oath, that she was eating a cough drop. The ALJ found the employe was not credible in this assertion. Further, the employe did not testify that she admitted eating an onion ring in the office because she did not think she would be discharged, but because she felt intimidated by the store manager. The ALJ indicated in the credibility conference that the store manager was not an intimidating presence. For these reasons, the commission credits the employer's testimony that the employe was specifically warned that further violations of the employer's policy would result in her discharge.

cc: WITTS PIGGLY WIGGLY


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