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

CHARLES P PHELPS, Employee

ARROW TOOL & STAMPING CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08606032MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 6 of 2008, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in 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 $2,656 to the Unemployment Reserve Fund.

Dated and mailed December 23, 2008
phelpch . usd : 164 : 6 MC 653.1  PC 714.07  BR 335

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In his petition for commission review the employee argues that Kathy Braun never saw him on the morning in question and that her testimony that she smelled alcohol on his breath should be disregarded as hearsay. This argument fails. Ms. Braun's testimony was that she personally observed the employee and that, standing about a foot away from the employee, she could smell alcohol on him. This testimony did not constitute hearsay, but was a competent, firsthand account of Ms. Braun's eyewitness observations. Moreover, the commission notes that the decision did not rely on Ms. Braun's observations. The employee acknowledged reporting for work while still under the influence of alcohol, and the blood alcohol test reflected a blood alcohol level of .074.  (Applying a retrograde analysis, wherein the employee is assumed to metabolize alcohol at a rate of .015 per hour, the employee would have been at about .089 when he reported for work, exceeding the point recognized by Wisconsin law as being presumptively indicative of alcohol impairment. See, Rowe v. Walker Stainless Equipment Co. Inc. (LIRC, Dec. 19, 2003); Wilson v. Tramont Corp. (LIRC, Feb. 29, 2008).)

The employee also argues that he did not start the appeals process to end up worse off than he began. He points out that he is expected to pay back $2,656 in benefits, $728 of which was paid to his ex-wife and which he never received. However, it was explained to the employee in the pamphlet "Attending A UI Hearing," and on the reverse side of the appeal tribunal decision allowing benefits, that if a later decision were to reverse and result in a denial, any benefits received in error would need to be repaid. The employee should, therefore, have been aware that he may be required to repay his benefits. Moreover, while the employee maintains he has been made worse off in the process, the fact is the employee had what was essentially an interest-free loan. Although a part of that amount may have been directed to the employee's ex-wife, this was in furtherance of the employee's legal obligations and therefore must also be considered a benefit to the employee.

In his petition the employee contends that the employer's representatives perjured themselves with respect to their explanation for failing to appear at the August 4 hearing. However, the issue of whether the employer had good cause for missing the August 4 is not before the commission at this time. A separate appeal tribunal decision addressing that question was issued on September 11, 2008, which the employee had an opportunity to challenge by filing a timely petition for review.



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