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


THEODORE P BAUER, Employe

J M FISHER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99003155MD


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 9 months as a maintenance technician for the employer, a property management business for a number of rental properties. His last day of work was July 19, 1999 (week 30), when he was discharged.

The employe was responsible for maintenance work at one particular apartment complex. In addition, every eight weeks a maintenance person from one of the employer's sites was on call during nights and weekends for all of the sites. The employe was on call during the very hot Fourth of July weekend as a result he had a large number of air conditioner malfunctions at the various properties resulting in a large number of service calls.

The employer's work rules (Exhibit 3) provide that violation of company rules may lead to verbal/written disciplinary warnings or discharge, depending on the violation. One such rule prohibits "neglected duties, refusal to perform assigned tasks, refusal to follow a direct order, insubordination."

On July 6 the employe's supervisor told him to go to different job sites to check on equipment. The employe asked his supervisor to find someone else because the employe had been driving all over during the weekend and had not completed all of his records for the calls he had made. His supervisor replied that he could catch up on paperwork in the hour before they left. The supervisor also noted that the employe should have kept ongoing records so he would not have to reconstruct his stops. The employe became agitated and his supervisor asked what was the problem. The employe indicated the he "had a problem working for jackasses," referring to his supervisor. The employe then said that if he had to go to the properties he would go home sick and get a doctor's excuse for the time missed. His supervisor informed him that if he did so he would be considered to have quit. The employe responded, "go ahead and fire me." The employe ultimately agreed to perform his duties.

The employe received a written warning (Exhibit 2), for insubordination. The July 6 warning notified the employe "if any incident occurs for which a warning might otherwise be given Ted will be terminated due to the fact that this is his second written warning. (The employe had received a prior written warning in June of 1999 for tardiness, Exhibit 5.)

On the night of July 15 the employe was called to perform a task at a particular job site. On July 16 he refused to attend to his regular duties until he had finished the task from the prior evening. The supervisor told him that during normal business hours the onsite supervisor at each location was in charge and that he should not go over the other supervisor's head. The supervisor contacted the onsite supervisor where the problem was located. The onsite supervisor agreed to take care of the matter. When the employe's supervisor indicated that the supervisor was going to telephone the other onsite supervisor the employe said that he was sick and that he was going to go home. About an hour later the employe's supervisor came out of the office and saw the employe talking on his cell phone. He told the employe to "go on and take off." The employe then apologized for his attitude.

The issue to be decided is whether the employe was discharged 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 commission finds that the employe's actions amounted to insubordination and rose to the level of misconduct connected with his work. The employe was given reasonable directions by his supervisor on both July 6 and July 16, and refused to obey such reasonable directions. Further, the employe had been warned on July 6 that a future act of insubordination would result in termination. Yet, less than two weeks later he was again insubordinate. Further, on both occasions he threatened to leave work claiming illness when he obviously was not ill. While the employe apologized to his supervisor on July 16, he did not do so until the supervisor told him to go home.

The commission therefore finds that in week 30 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 $2,626.00 for weeks 30, 32 through 35, and 40 through 43 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 30 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 $2,626.00 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 January 31, 2000
bauerth.urr : 132 : 1 : MC 640.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ. The ALJ believed the employe was acting with the interests of the employer's tenants in mind. However, it was the employer's prerogative to assign work as it saw fit. The commission's reversal does not rest on a differing impression of credibility or demeanor but upon reaching a different legal conclusion than the ALJ.


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