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

RODNEY DANIELS, Employee

NAPA AUTO PARTS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08607755MW


On October 28, 2008, the Department of Workforce Development issued an initial determination which held that the employee had been discharged not for misconduct connected with his employment. The employer requested hearing on the adverse determination, which hearing was held on December 12, 2008. On December 26, 2008, an administrative law judge of the department issued an appeal tribunal decision which reversed the initial determination and found that the employee had been discharged for misconduct connected with his employment. The employee petitioned for commission review of the adverse appeal tribunal decision. On March 26, 2009, the commission issued a decision which modified the appeal tribunal decision to find that the employee had voluntarily terminated his employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a). At that time, the commission did not address the issue of the overpayment of benefits to the employee that had arisen following the appeal tribunal's reversal of the initial determination.

The employee sought and obtained circuit court review of the commission's March 26, 2009 decision. The circuit court, in a January 25, 2010 decision, affirmed the commission's holding that the employee had voluntarily terminated his employment with the employer. The circuit court also remanded the matter to the commission for it to address the issue of the proper disposition of the overpayment of benefits to the employee. Pursuant to that directive, the commission ordered hearing on that issue, which hearing was held on May 21, 2010 before a department administrative law judge acting on the commission's behalf.

The matter is again before the commission, and now is ready for disposition. Based upon the applicable law and the record, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The sole issue in this case is the proper disposition of $2,377 in unemployment insurance benefits the employee received between the department's issuance of the October 28, 2008 initial determination allowing benefits, and its issuance of the December 26, 2008 appeal tribunal decision reversing the determination and denying benefits.

Following the employee's September 17, 2008 application for unemployment insurance, the department investigated the nature of the employee's separation from employment with the employer. This investigation included taking a statement from the employee on October 14, 2008. In that statement, the employee indicated that the employer told him he was being let go for refusing to sign certain paperwork. The paperwork in question was an acknowledgement that the employee had received certain rules and policies of the employer governing work conduct. At the December 12, 2008 hearing on that issue, the employee and employer agreed that the separation from employment was due to the employee's refusal to have signed the acknowledgement of receipt.

As part of its investigation, the department also sent a Discharge Questionnaire to the employer's representative. The questionnaire asked why the employee had been discharged; the employer's representative indicated that the violation for which the employee had been discharged was personal use of a company vehicle on September 13, 2008. The department adjudicator who investigated the employee's claim for unemployment insurance and issued the October 28, 2008 initial determination, relied upon the assertion by the employer's representative that the discharge had been for personal use of the employer's vehicle.

Wisconsin Stat. § 108.04(13)(c) provides, in relevant part, that "if an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, benefits paid prior to the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, prior to the end of the week in which an appeal tribunal decision is issued regarding the matter, are not affected by the redetermination or decision, unless the benefits are erroneously paid without fault on the part of the employer as provided in par. (f)." By operation of this statute, the benefits the employee received following the department's October 28, 2008 determination, and until the December 26, 2008 appeal tribunal decision, remain charged to the employer's reserve account unless the employer was not at fault for the erroneous payments.

Wisconsin Stat. § 108.04(13)(f) provides, in relevant part, that if an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, the employer is at fault for any benefits erroneously paid as a result of that failure, unless the employer had good cause for the failure. The assertion by the employer's representative as to the reason for the discharge, and upon which the adjudicator relied, however, was manifestly incorrect information, as personal use of the employer's vehicle was not the reason for the separation from employment. Nor has the employer shown, and the record does not establish, that the employer had good cause for its provision of this incorrect information.

Finally, by operation of Wis. Stat. § 108.04(13)(c), in this context an overpayment to an employee comes into existence only if the employee also was at fault for the erroneous payment of benefits. In this case, no such fault exists, since the employee specifically indicated to the adjudicator that the separation was not due to the employee's alleged unauthorized personal use of the employer's vehicle, but rather was due to his refusal to sign the acknowledgement of receipt of the employer's rules.

The commission therefore finds that the employee received benefits for weeks 38 of 2008 through 50 of 2008, totaling $2,377, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). The commission finds further that the benefits in question were erroneously paid because the employer failed to provide correct and complete information requested by the department during its fact-finding investigation, and did not have good cause for that failure, within the meaning of Wis. Stat. § 108.04(13)(f). The commission finds further that the $2,377 in benefits erroneously paid as the result of the employer's failure to provide correct information remain charged to the employer's reserve account, pursuant to Wis. Stat. § 108.04(13)(c). The commission finds, finally, that the benefits were paid without employee fault, within the meaning of Wis. Stat. § 108.04(13)(f), such that they do not constitute an overpayment and therefore stand as paid.

DECISION

The benefits in question remain charged to the employer's reserve account and there is no overpayment.

Dated and mailed June 29, 2010
daniero . urr : 105 : 2 : BR 319

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


cc: Attorney Lisa M. Szafranic


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