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

NICHOLAS J CRAIN, Employee

MIKES STANDARD SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09201542NR


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 began working in January of 2008 as a mechanic and tow truck driver for the employer, a service station and auto repair business. His last day of work was April 22, 2009 (week 17), when he was discharged by the employer.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

The employer's owner testified that the employee was belligerent toward him. However, the employer was not able to explain in any detail what the employee said to him and therefore did not present any reliable evidence that the employee was belligerent.

The owner of the employer testified that the employee continuously failed to perform his job correctly.

The owner referred to various jobs the employee worked on and various problems with different vehicles. The employee acknowledged that there were a couple of situations that were within his control that he could have handled differently. One was where a tow chain rubbed against the fuel line and a clamp fell off, needing to be replaced, and there was a small dent to the exhaust. That situation was in November of 2008. There was another situation in December of 2008 where the tow cable became wrapped in the ramp, causing damage to the wench. There had been another situation in April of 2008 where the employee hooked up a car incorrectly, resulting in damage to the transmission. The vehicle was front wheel drive and the employee had, based on his earlier experience, been told that such a vehicle could be put in neutral and towed backwards. In hindsight, the employee realized that was not correct. In March of 2009, the employee failed to tighten lug nuts and a tire fell off when the vehicle stopped at the pump to get gas. The employee failed to check the other wheel lug nuts to make sure they were tight. A tire fell off of that car the next day while the car was traveling on the highway. In April of 2009 the employee broke some bolts and the transmission pan of a Dodge Dakota. The employee had received verbal warnings during his employment. The employer then discharged the employee.

The employer argued that the employee's continued failure to properly perform his duties in spite of repeated warnings amounted to misconduct. The commission agrees. The employee argued that he was not at fault with respect to the lug nut incident on March of 2009. The employee argued that his co-worker put on one tire and he put on the other. Even if this was true, the employee failed to check the lug nuts on at least one of the tires, causing the wheel to fall off while the car was traveling on the highway. With respect to the final incident, the employee broke bolts and a transmission pan and still allowed the vehicle to leave the shop. The owner brought the van in a few days later because it was leaking transmission fluid. The employee said he did not realize that the transmission filter and transmission pan gasket were loose at the time, but later realized that they were. The employee's repeated failure to carefully perform his work caused serious problems for the employer and amounted to such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 17 of 2009, the employee was discharged 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 for each of weeks 19 through 37 of 2009, amounting to a total of $4,596; 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), 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 the overpayment resulted from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), and the overpayment also was not the result of a departmental error. See Wis. Stat. § 108.22 (8)(c)2. Department records reflect that the employee informed the department, when he filed his claim, that he had been laid off.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2009, 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 amount which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,596 to the unemployment reserve fund.

Dated and mailed January 7, 2010
crainni . urr : 145 : 5 MC 655.01 MC 660.01

/s/ 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 reversed the ALJ because it reached a different conclusion when it applied the law to the facts found by the ALJ. The employee specifically testified that he did not realize the transmission pan on the Dodge was loose and that he tightened the lug nuts on one side of the vehicle involved in the March 2009, incident. While the employee argued that the resulting damage was not his fault, his interpretation of the facts is unreasonable, under the circumstances.

 

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.


cc: Mike's Standard Services (Hudson, Wisconsin)


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