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

RONALD E CLARK JR, Employe

HONDO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605400RC

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 one year as a customer service representative for the employer. His last day of work was July 9, 1999 (week 28), when he was discharged. The employer's unwritten work rule prohibits workers from taking the employer's vehicles home. Mainly, the rule is for insurance reasons. The employe was discharged on July 9, 1999, for violating that rule.

The employe's first supervisor, Tony Buchess, told him of the employer's rule regarding personal use of the vehicle. In particular, he was told that he was not to bring the vehicle home because Mr. Nehls, the general manager, did not approve of taking vehicles home. He was not told the consequence of violating such rule.

The employe took the employer's truck home over night approximately seven or eight times during his employment, once for five days in a row. Mr. Buchess was aware that the employe took the vehicle home because the employe asked if he could use the vehicle because his own vehicle had been broken down. Mr. Buchess indicated that the employe was not supposed to take the vehicle home, but could if he was careful and did not drive it around. The employe also kept the employer's vehicle on a couple of Sundays and brought it back before work on Monday. On these occasions the employe did not ask permission to do so.

At some point during his employment, and at least by the end of his employment, the employe's supervisor was Mr. Askew. The employer's plant was closed on July 4 and July 5. The employe worked until about 2 p.m. on July 4. His route ended in Racine approximately 15 miles from home. The plant was about the same distance away on a different road. The employe took the employer's vehicle home. He stayed home about 10 minutes and then went back to the plant. He had a relative drive his wife to the plant so that she could take the employe's van home. The employe then drove the company vehicle home. The employe testified that he did this because he wanted to get up early in the morning to get his day done with. The distance from the plant to his first stop on July 5 was about 15 miles. The distance from the plant to the employe's home was about one mile. At the end of his workday on July 5, at approximately 1:00 p.m., he went home again for 10 minutes and had his wife follow him to the plant so he could drop off the company vehicle.

The initial issue to be decided is whether the employe was discharged 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 had no basis for believing that the company would think it was all right for him to take the truck home on those Sunday nights and on July 4. The employe knew he was not to take the vehicle home. Granted, he was given permission to do so in the past because his car was broken down, but the key is he was given permission to do so. The employe was aware that an exception was being made because of his personal circumstances. On the occasions in the past when he kept the vehicle on a Sunday he did not ask a supervisor whether he could do so, and did not tell the supervisor he was doing so. As the employe testified, he had no basis for believing this would be acceptable to the employer.

It is not necessary for the employer to warn the employe of the consequences of his actions when he is well aware that what he is doing is not permitted by the employer's rules. Further, the employe had no reasonable explanation for violating the employer's rules. The employe lives only one mile from work. Therefore, he is only saving himself that one-mile drive to the plant in the morning to pick up the truck. Indeed, the employe was going through quite an elaborate process -- going home for 10 minutes, having a relative drive his wife to the plant so that she could drive the van home so that he could drive the company vehicle home - for what appeared to be a slight benefit. The employe spent more time with these arrangements than it would have taken him to drive one mile to get the truck in the morning in the first place.

The commission therefore finds that in week 28 of 1999, the employe was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $5,244.00 for weeks 29 through 47 of 1999, for which the employe was not eligible and to which the employe was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

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 employe. 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 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 28 of 1999, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $5,244.00 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 November 26, 1999
clarkro.urr : 132 : 6   MC 694

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility or demeanor. The commission does not disagree with any credibility assessment made by the ALJ but reaches a different legal conclusion when applying the law to the facts.

cc:
COCA COLA
HONDO INC

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]