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

MICHAEL J LIPPIG, Employee

UNITED SCALE & ENGINEERING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07004528MS


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 almost two years as a field service technician for the employer, a distributor and retailer of scales, balances and weighing systems. His last day of work was September 26, 2007 (week 39), when he was discharged.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer has a written policy which provides that workers may be discharged for permitting someone not employed by the employer to drive a company vehicle without obtaining prior authorization from a service manager. The employer also has a written policy which provides: "Only authorized employee/person may drive company vehicles except in an emergency." The employee was aware of the employer's policies.

On September 25, 2007, the employee drove his company vehicle to a bar with a friend while out of town on business. The employee had never used the company vehicle for personal reasons in the past. The employee became intoxicated and considered taking a cab back to his hotel. The employee's friend responded that she was able to drive. The employee did not believe that his friend was intoxicated and permitted her to drive the company vehicle. After driving for approximately two blocks, the employee realized that he had forgotten his cigarettes at the bar. The employee's friend attempted to turn the vehicle around but slid into a ditch. The vehicle was not damaged during the incident. A passerby called the police who found the employee in the driver's seat attempting to get the car out of the ditch. The employee and his friend received citations for operating while intoxicated. The employee contacted his immediate supervisor from jail and advised him of the accident.

On September 26, 2007, the corporate service manager and the employee's immediate supervisor discharged the employee for violating the employer's policy. The employee admitted that he "really screwed up" and stated that it would never happen again; however, the corporate service manager did not reconsider the discharge decision. The employee had never been previously disciplined for similar conduct. The employee later entered a no contest plea to the citation and was ordered to undergo an alcohol assessment. This was the employee's first operating while intoxicated citation.

The employer argued that the employee was discharged for misconduct connected with his employment. 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' within the meaning of the statute."

The employee clearly violated the employer's policy against allowing persons not employed by the employer to drive his vehicle. The employee was aware that he was too intoxicated to drive the vehicle. Further, he knew the other individual had been drinking. The employee was considering calling a cab to get back to his hotel but instead, let an individual who had been drinking and who did not work for the employer, drive his vehicle, subjecting the employer to potential liability. The employee's friend then drove the vehicle into the ditch. The employee ultimately drove the car as he was driving the car out of the ditch when the police arrived. While this was an isolated incident, and the employee had not been warned about such behavior in the past, the employee's conduct was so egregious and so detrimental to the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 39 of 2007, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for week 39 of 2007, weeks 42 through 52 of 2007 and weeks 1 through 9 of 2008, amounting to a total of $6,279.00; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), the employee 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), 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 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 39 of 2007 and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The initial Benefit Computation (Form UCB-700), issued on September 28, 2007, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed March 12, 2008
lippimi . urr : 145 : 1 MC 692

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision because it reached a different assessment of witness credibility. The commission reversed the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

 

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.



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