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


MICHAEL J BUYSSE, Employe

LENSCAFTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004757JV


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about five years for the employer, a manufacturer and retailer of eyeglasses. His most recent assignment was as a laboratory manager in one of the employer's retail stores. His last day of work was on or about November 6, 1998 (week 45) when he was discharged.

The issue which must be determined is whether the employe's discharge was for misconduct connected with his work.

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 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 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 employe was discharged because of an incident which occurred just before the discharge. On the day in question, the employe was scheduled to begin work about noon. He reported to work as scheduled and began work. Shortly thereafter, a question arose as to whether the employe was capable of working or was under the influence of alcohol or some other drug. He was taken by the store manager to a testing facility, where he agreed to give urine and breath samples for alcohol analysis. The test results showed a blood alcohol level about twice the level which would establish a presumption of operating a motor vehicle while intoxicated. He was discharged because of the test results, pursuant to the employer's policy which provides for disciplinary action up to and including discharge for being under the influence of alcohol at work.

The employer contended that the employe's actions in reporting for work under the influence of alcohol amounted to misconduct connected with his work. The commission must agree. The employe reported to work under the influence, based on both the breathalyzer and on the observations of his co-workers, which was the reason the employer required an alcohol test. The employe acknowledged that he had been drinking heavily on the previous night, but stated that he believed by sleeping before reporting to work he would be able to work. The commission does not believe that a person who is impaired by alcohol should determine whether he or she is capable of working. The employer explained that the employe was a lab manager, and was to supervise all the lab workers and manufacture glasses. This would be likely to have an impact on the quality of the employer's product, and might necessitate the refilling of a prescription, causing financial loss to the employer. In addition the employer did not want a person who was impaired by alcohol waiting on its customers. The employe testified that he reported for work even though he realized he was under the influence. Given the employe's subjective belief that he was under the influence, his co-worker's belief that he was under the influence, the employer's policy and the nature of the employe's work, the employe's actions in reporting to work knowing that he was under the influence of alcohol amounted to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with the employe's employment.

The commission therefore finds that in week 45 of 1998 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for week 46 of 1998 through week 1 of 1999, amounting to a total of $3805.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe 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 employe 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 employe is ineligible for benefits beginning in week 45 of 1998, 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 $3805.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on November 10, 1998, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: February 17, 1999
buyssmi.urr : 145 : 3   MC 652.5  MC 653.1

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ but reverses the ALJ's decision based on its reaching a different legal conclusion from the facts found by the ALJ.

cc: LENSCRAFTERS INC

GEOFF HERMSEN
C/O RETAIL SPECIALISTS

CONNIE DAVIS
HEARING COORDINATOR
C/O GATES MCDONALD


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