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

ROBERT A KASTEIN, Employee

DETJEN ENTERPRISES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10405505AP


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 approximately six years and ten months for the employer, a grocery store. He most recently worked as a night manager. His last day of work was November 24, 2010, and he was discharged on November 29, 2010 (week 49).

The employee was aware of employer's policies which prohibit the use of alcohol by employees on its premises and require employees to pay for items at the time of purchase. The employee was responsible for enforcing those policies in his role as night manager.

On November 24, 2010, a co-worker told the employee that he was purchasing a six pack of beer and asked the employee to have a toast with him because it was the co-workers' last day of work. After the co-worker asked the employee to join him in a beer toast a few times, he did so. The employee and the co-worker had a shot of beer each from the same beer bottle in the employer's back room where the beer was stored. The employee then refilled the empty bottle and returned it to the case in the back room. The beer had not in fact been paid for. When the employer learned of the incident, it discharged the employee for drinking on the employer's premises and for drinking beer that was not paid for.

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

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 employer maintained that the employee's conduct violated its rule prohibiting the consumption of alcohol on the employer's premises and amounted to misconduct. The commission agrees. The employee admitted that he was aware that drinking at work was prohibited, and that it had never been permitted by the present owner. He attempted to conceal his conduct by refilling the empty bottle with water and leaving it in the back room. The employer was the night manager and was responsible for knowing and enforcing the employer's policies. His intentional conduct on this occasion showed a deliberate and substantial disregard of the employer's interests and of the standards of conduct that the employer had a right to expect of an individual in a position of authority.

The commission therefore finds that in week 49 of 2010, 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 49 through 52 of 2010, and weeks 1 through 25 of 2011, amounting to a total of $7,941.00; 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), she is required to repay such sum to the Unemployment Reserve Fund.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 49 of 2010, 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 $7,941.00 to the Unemployment Reserve Fund.

Dated and mailed June 30, 2011
kastero . urr : 178 : 1 : MC 650 : MC 666.01 : MC 687 : BR 225.04

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner



MEMORANDUM OPINION

The commission discussed witness demeanor and credibility prior to deciding to reverse. The ALJ credited the employee's testimony that he was aware of the employer's prohibition against consuming alcohol in the workplace. Nevertheless, she concluded that his drinking beer on this occasion amounted to an isolated act of poor judgment. The commission disagrees. The employee intentionally acted in violation of the employer's policy and attempted to conceal that conduct by refilling and replacing the empty beer bottle in the case. His conduct violated the standards of behavior that the employer had a right to expect of its managers and amounts to misconduct.


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