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


WAYNE A MARTEN, Employe

LIBERTY SIDING & CONSTRUCTION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201907EC


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 employe worked about 14 months as a siding applicator for the employer, a siding and construction business. His last day of work was October 2, 1998 (week 40). He was discharged by the employer on October 7, 1998.

The employe was discharged for a number of reasons including substandard work on the job, missing too much work and lying to the president about it, his attitude when he picked up his paycheck, and giving a higher number units on his pay sheet than he had performed.

During the final period of his employment, the employe lived at a Huber facility with work privileges. The employe called the employer and indicated he would not work on September 30, 1998. He worked for his brother that day. On October 1, the employe notified the employer he would not be at work because he had a sore back and a cold. He went to work for his brother that day. On October 2, 1998, the employe may have worked a half day, it is unclear where he went when he left the employer. On October 5, the employe called the employer allegedly from the Huber center and indicated he would not be reporting for work because he did not have a ride to the employer. He actually called from his brother's site where he painted all day. During the same call, he indicated that he would be going to the doctor on October 6, and would be unable to work that day because he would be too sore. He worked for his brother on October 6.

The employe had been verbally warned that he couldn't miss so much work because the jobs needed to be completed. The employe never disclosed to the employer his intention to do other work while away from his regular employment. The employer learned where the employe was when he was contacted by the Huber center to confirm the employe was present at the employer's where he signed out he was going when he left to work.

The issue before the commission 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."

The employer's complaints concerning timesheets and substandard performance were disciplined with warnings when they occurred and were not repeated. However, the employe was repeatedly absent during the last two weeks of his employment and lied about the reasons. Although the employe maintained in each case that his explanation for his absences were true but that they did not prevent him from working for his brother, the commission does not credit his explanations. The employe lied to the employer about his reasons for absence. He knew that his attendance at work was important. He did not even tell the Huber center where he was going and he never disclosed to the employer his actual plans. Throughout, the employe acted in deliberate and substantial disregard in the employer's interests in regular attendance and truthfulness in giving notice.

The commission therefore finds that in week 41 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 in the amount of $170 in week 43 of 1998, $290 in each of weeks 44 of 1998 through 1 of 1999, and $297 per week for each of weeks 2 through 12 of 1999 , amounting to a total of $ 6337; 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), he is required to repay such sum to the Unemployment Reserve Fund. $290.00 of the benefit check for week 42 of 1998 and $120 of the benefit check for week 43 of 1998 were forfeited. Since benefits are now denied for such weeks, they cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $410.00.

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 41 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 $6,337 to the Unemployment Reserve Fund.

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 April 2, 1999
martewa.urr : 178 : 3   MC 605.09  MC 630.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge prior to reversing to discuss the credibility of the witnesses. While the ALJ did not give a great deal of credence to the employe's explanations for how he was able to work for his brother when he was unable to work for the employer, she relied on the employer's failure to rebut the employe's account for allowing benefits. Since the employe did not disclose his intentions to the Huber center or the employer, the commission finds the employe's explanations inherently incredible. It therefore reverses to find misconduct.

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 Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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