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


DEREK D GRIFFIN, Employe

BALLY TOTAL FITNESS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98608129MW


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 15 months as an administrative assistant and morning receptionist for the employer, a health club business. His last day of work was November 6, 1998 (week 45). The employer discharged the employe from his work on November 10, 1998 (week 46), for insubordination.

The issue which must be decided is whether the employe's actions, for which he was discharged, constituted 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 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 employe's duties included checking and collating membership applications. He also worked at the front desk of the health club to check in members. On November 6, 1998 (week 45), the club service manager told the employe that the employer's area service supervisor observed the employe spending too much time away from the reception desk while checking membership applications. The service manager said he was to spend only one hour a day away from the reception desk while he checked membership applications. If he needed more time to complete the applications, he would perform that duty while at the reception desk. The employe was upset with the change in policy. He replied that the policy change was not reasonable and he would not perform the membership application checking. He said he would just sit at the front desk. The service manager told him to leave. The employer suspended the employe's employment on November 6, 1998 (week 45).

The employer contended that the employe's statement that he would not perform his assigned duties was misconduct. The commission agrees. In this case, the employer's request was reasonable, in that the employer perceived that the employe was spending an inordinate amount of time away from the desk doing paperwork. The employer had to provide coverage for the front desk, and did not wish to hire an additional employe to watch the front desk when it believed that the employe could finish his paperwork more quickly, and that he could do his paperwork and watch the front desk at the same time. The employer indicated that there were times in the morning that were not busy. The employe became angry and stated that he would not obey the employer's reasonable directive. He was given the opportunity to think about the matter over the weekend, but he refused, stating that he would have the same attitude on Monday, when he returned. The employer suspended the employe's employment as a result, however, the employe never contacted the employer to say that he had thought the matter over and would do the assigned task. The employe's continued refusal, in a public area, to obey the employer's reasonable directive was insubordinate, and the commission concludes that the employe did not intend to do any paperwork at the front desk. The employe's actions, in refusing to do his work in the manner directed by the employer, along with his arguing the matter and complaining in a public area, amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 46 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 46 through 52 of 1998 and weeks 1 through 9 of 1999, amounting to a total of $2,432.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1), Stats. Pursuant to Wis. Stat. § 108.22(8)(a), Stats., 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 46 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 $2,432.00 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700) issued on November 13, 1998, is set aside. If benefits become payable based on work performed in other covered 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 March 17, 1999
griffde.urr : 145 : 1  MC 640.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found the employer to be very credible, and did believe that the employe said he would not work while at the front desk because he wanted to work without interruption. The commission's reversal of the ALJ's decision is not based on a different impression of witness credibility but because it reached a different legal conclusion when it applied the law to the facts found by the ALJ.

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.C. 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: WRAY VASSAR
CONTINENTAL INVESTIGATIONS & SECURITY LTD


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