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


DALE A BETTINGER, Employe

AMERICAN TRANSPORTATION OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00400515OS


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. Delete the last two sentences in the last paragraph on page 3 of the appeal tribunal decision and insert therefor:

"Those benefits were paid because the initial determination erroneously concluded that the employer's policy did not prohibit off- duty conduct. The policy was in fact clear and unambiguous and not susceptible to misunderstanding."

2. Delete the second paragraph on page 4 of the appeal tribunal and insert therefor:

"The appeal tribunal further finds that due to department error and not due to any action by the employe, the employe was paid benefits in the amount of $1,782.00 for which the employe was not eligible and to which the employe was not entitled, within the meaning of Wis. Stat. § 108.03(1), but that recovery of the benefits shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c)."

3. Delete the last sentence of the DECISION paragraph and insert therefor:

"Recovery of the overpaid benefits in the amount of $1,782.00 is waived. The employe is not required to repay the department, nor will the overpaid benefits be covered by any other means. The appropriate employer accounts will be credited immediately with overpaid amount."

DECISION

The decision of the administrative law judge, as modified, is affirmed in part and reversed in part. Accordingly, the employe is ineligible for benefits beginning in week 2 of 2000, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. Recovery of the overpaid benefits in the amount of $1,782.00 is waived. The employe is not required to repay the department, nor will the overpaid benefits be covered by any other means. The appropriate employer accounts will be credited immediately with overpaid amount.

Dated and mailed May 10, 2000
bettida.umd : 132 : 1   MC 651.2  BR 335.02

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner



MEMORANDUM OPINION

The commission has reversed the appeal tribunal decision regarding department error. The file reflects that the adjudicator was sent the employer's policy which sets forth the prohibited conduct. As noted in the appeal tribunal decision, the policy clearly and unambiguously prohibits off-duty conduct. The department adjudicator erred in finding that the policy did not prohibit such off-duty conduct. Accordingly, the commission has waived recovery of the overpaid benefits.


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