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

RYAN A GLEESING, Employee

ARCHIE MONUMENT STONE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001709MD


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 two or three years, most recently as a blaster for the employer, a funeral headstone engraving and installation business. His last day of work was on March 6, 2007 and on March 7, 2007 (week 10) the employer discharged him for a no call/no show on March 7, after prior warnings.

On May 16, 2006, the employer gave the employee a final written warning for being a no call/no show for work on Saturday May 6 and 13, 2006. On August 18, 2006, he was a no call/no show, and was discharged. However, the owner is a friend of the employee's family and rehired the employee after the employee's father spoke with the owner. The employee was again warned about his attendance.

The employee recalled a no call/no show in which he had car trouble and his cell phone was not working to call in. Whether this was the August absence or occurred in November of 2006, is not clear. The employee had additional absences without notice and received verbal warnings from the employer.

The employee returned to work in mid-February of 2007, following a layoff. The employer advised him at that time that he would be discharged for his first no call/no show. On March 6, 2007, the employee was out drinking from 6:00 p.m. until midnight. On March 7, 2007, the employee was absent without notice and was discharged.

The issue to be decided is whether the employer discharged the employee for misconduct connected with his work for the employer. (1)

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 employee was absent without notice to the employer on at least four occasions. The employee did not offer a credible valid reason for failing to provide notice. The employer had warned and previously discharged the employee due to his failure to provide notice. The employee was specifically advised in mid-February that he would be discharged if he was absent without notice. The employee was then absent without notice on March 7. The employee's actions demonstrated an intentional and substantial disregard for the standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 10 of 2007, the employer discharged the employee for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission therefore finds that in week 10 of 2007 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 $4,955.00 for weeks 10 through 19 and 25 through 34 of 2007, of which $15.00 has been recovered and was included in the overpayment amount set forth by a separate decision, 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.

Under date of March 20, 2007, the department sent the employer a questionnaire and other documents regarding the employee's benefit eligibility, to be completed and returned by March 28, 2007. The employer first received the documents on March 27, 2007. The employer's bookkeeper investigated and completed them and returned them by mail received by the department on March 30, 2007, the same date as the department issued the determination in this case.

The statutes provide a benefit charge to employers who fail to provide correct and complete information in the fact-findings investigation preceding the department determination.

The next issue is whether the employer failed to provide correct and complete information requested by the department during a fact-finding investigation and, if so, whether such failure was with good cause.

The employer's information was not provided within the time frame provided by the department's request. However, the employer did not receive the request with sufficient time to meaningfully provide the information requested and, since it acted reasonably promptly to respond, its failure to meet the deadline was with good cause.

The commission further finds the employer failed with good cause to provide complete and correct information during the fact-finding investigation, within the meaning of Wis. Stat. § 108.04(13)(c) and (g).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2007, 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 $4,940.00 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 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 December 19, 2007
gleesry . urr : 132 : 1 :   MC 605.05

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, 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 did not impart any demeanor impressions he had of the witnesses that led to his decision. The commission credits the testimony offered by all the employer's witnesses. The employer was trying to work with the employee because the employer is a friend of the family. The employee had volunteered to work in May and failed to appear. The employee was not sick beginning in the afternoon of March 6, 2007. The employee's co-worker testified the employee did not mention being sick, and did not look sick during their six hours of drinking on March 6. The more reasonable inference is that the employee did not appear at work on March 7, and did not call in, because he either overslept or was hung over, or both.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.

 


JAMES T. FLYNN, Chairman, (dissenting):

I believe that the ALJ rightly found that the employer failed to meet its burden of proof. The only specific evidence presented by the employer was: that the employee was absent without notice on May 6th and 13th and August 18th of 2006; that the employee was discharged as a result; that the employee was rehired with a warning that any further absences would result in his discharge; that on March 6, 2007 the employee went out drinking with a co-worker; that the employee was absent from work the next day, March 7, 2007; that the employee was discharged for that absence on March 8, 2007.

The employee testified that he was ill on the day of March 7th. The employer's witness testified that the employee did not look sick the night before. However, there is not one iota of evidence to contradict the employee's testimony that he was ill the morning of March 7th. The majority assumes that the employee was hung over from drinking the night before but there is still no evidence of that in the record. The co-worker did not testify as to the amount of alcohol he or the employee consumed. In fact the co-worker's testimony supports the conclusion that the employee was not inebriated. The co-worker testified that the employee did not go to the restroom to vomit; did not complain about feeling ill, or having nausea or diarrhea. In fact the employee drove himself home. There is no evidence that the employee drank too much alcohol. Thus, we are left with the employee's uncontroverted testimony that he did not report to work on March 7th because he was ill. Who can say that he wasn't?

The employer further claimed that the employee did not give proper notice of his absence on March 7th, yet the evidence established that the employer's office was not open before 8:00 a.m. and there was no voice mail or answering machine that could receive such notice. The ALJ found, and I agree, that the employee's claim that he gave notice by calling his supervisor's cell phone is credible, especially as the co-worker testified that workers would call the supervisor directly if they could not contact him through the office phones. The supervisor's denial that this is permitted is therefore not credible.

I must conclude that the employee was ill on March 7th and that he gave notice of his illness and that he did not engage in any intentional or negligent act of misconduct as proscribed in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941).

I therefore respectfully dissent from the majority decision.

/s/ James T. Flynn, Chairman


cc: Attorney Edith M. Petersen

 


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Footnotes:

(1)( Back ) Wisconsin Statute § 108.04(5g) imposes a disqualification from benefit eligibility for an employee who is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, if the employer satisfies the requirements set forth in paragraph (d) of that subsection. The employer did not satisfy the requirements set forth in Wis. Stat. § 108.04(5g)(d) as among other things, it did not present evidence of a written policy or the employee's written acknowledgment of receiving such policy.


uploaded 2008/01/02