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

ADAM H HORN, Employee

TOMS TABLES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08602372MW


An administrative law judge 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 the employer, a duct cleaning business, for a year and nine months as a duct cleaner/technician. His last day of work was February 22, 2008 (week 9).

The employee was required to carry a cell phone as a condition of his job. The employer provided the employee with a phone, which he was permitted to use for personal calls within reason. In early July of 2007, the employer received a phone bill for $250, most of which was attributable to personal calls made by the employee. The bill represented 1000 minutes, all during working hours. The employer told the employee he could no longer use the phone for personal calls.

In early December of 2007 the employer received another phone bill for $175 amounting to 800 minutes of personal use by the employee during working hours. The employer told the employee that if he continued to use the phone for personal use it would be cause for termination. The employer also asked the employee to reimburse it for the calls, and the employee stated he would. The employer approached the employee several times thereafter about repayment, but although the employee agreed to pay for the calls, he never did so.

On February 22, 2008, the subject of the cell phone calls came up again while the employee and employer were driving in the employer's van, at which point the employee stated that the calls were a "cost of doing business" and that he was not paying the "fucking bill." The employer explained that all the employee's calls were on his time, to which the employee responded, "I don't want the fucking phone any more," and handed the phone to the employer. When they returned to the shop the employee asked whether he still had a job or if he should go collect unemployment, to which the employer responded, "no phone, no work." However, the employer told the employee to call on Monday. The employee did so, at which time the employer told him he was discharged because of his disrespect for the employer, his abusive language, and his not wanting to have the employer's phone for business use.

The initial issue to decide is whether the employee quit or was discharged.

While the employer suggested that the employee's refusal to carry the phone amounted to a quit, the employer did not treat the employee as having quit at that time, but instructed him to call on Monday. When the employee made the call, he was notified that he was being discharged. The employer was the moving party in the separation.

Having concluded that the employee was discharged by the employer, the second issue to decide is whether the discharge was for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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."

After having made approximately $250 worth of personal calls the employee was warned that he was no longer permitted to use the employer's cell phone for personal use. The employee nonetheless continued to make an excessive number of personal calls using the employer's cell phone. When the employer asked the employee to pay for the calls he indicated he would, but never did so. During the final conversation with the employer the employee used profanity, told the employer his personal use of the cell phone was a "cost of doing business," and returned the phone to the employer, in spite of the fact that carrying a cell phone was a requirement of the job. The commission believes that the employee's entire course of conduct evinced a wilful and substantial disregard for the employer's best interests, so as to amount to misconduct.

The commission, therefore, finds that in week 9 of 2008, 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 in weeks 9 through 14 of 2008 and weeks 19 through 27 of 2008 in the total amount of $5,040, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he 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 9 of 2008 and until seven weeks have elapsed since the end of the week of discharge and he 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. He is required to repay the sum of $5,040 to the Unemployment Reserve Fund.

Dated and mailed July 18, 2008
hornad . urr : 164 : 1 MC 640. 05

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about the demeanor of the witnesses. The administrative law judge indicated that he believed the employee's demeanor was lackadaisical and that he was not "overawed by authority," but that neither party seemed to have a clear recollection of events. The employee testified, among other things, that he was not told he could not use the cell phone for personal calls until February of 2008, that the employer refused to show him the telephone bill when he asked to see it, that he never swore, and that he did not return the cell phone to the employer. The commission does not find this testimony believable, and it considers the employer's version of events to be the more credible.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set 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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