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

RICHARD E KUTSCHENREUTER, Employe

WISCONSIN NIPPLE & FITTING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602405MW

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 for about two and a half years for the employer. His last day of work was February 23, 1998. He was discharged on March 3, 1998 (week 10).

The issue which must be decided is whether the employe'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 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."

In January of 1997, the employe went into a rehabilitation program until April of 1997, and signed a last chance agreement indicating that he would not have any alcohol in his system and that the employer could test him if it believed he was under the influence while at work. According to the employer's policy, .02 is a positive test result. The employer's policy does not prohibit off duty use. The last chance agreement signed by the employe provides that it is intended to facilitate the employe's safe and continued return to work, and that a positive alcohol test will result in discharge.

The employe missed work from February 23 to February 25, and informed the employer that he had a toothache. He returned to work on February 26 and was told to take a test, as the plant manager could smell alcohol on him. The plant manager also suspected that he was under the influence because of past absences, and problems with his work performance. The manager asked if he had been using or drinking again and the employe said he had. The employe's breathalyzer test result was .07. The employe requested a blood test, which the employer allowed, but would not let the employe return to work until the results from the blood test were received. The employer terminated him on March 3, 1998 (week 10). The employe's denial that he was drinking before work was not credible, in light of the fact that his testimony with regard to the times and amounts he drank, was inconsistent.

The employe's actions, in reporting to work with a high level of alcohol in his blood, after having tested positive in the past, and after signing the last chance agreement, amounted to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 10 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 weeks 15 through 39 of 1998, amounting to a total of $3,969 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 10 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 $3,969 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700) issued on May 19, 1998 is set aside. If benefits become payable based on work performed for other covered employers 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 26, 1999
kutscri.urr : 145 : 5   MC 651.5  MC 652.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing, but reverses the ALJ because it reached a different legal outcome based on the record. In addition, the commission had evidence obtained at the remand hearing which was not available to the ALJ when he made his decision.

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.

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