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


VIRGIL L McNEIL, Employe

RUSSEL BOBB ENTERPRISES INC, Employer
c/o EMPLOYERS UNITY INC

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00600597MW


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 as a part-time driver for the employer, a cartage business, for about two months. His last day of work was May 14, 1998 (week 20), when he was discharged.

The employe was discharged after he admitted making a statement to a female co-worker indicating that she was the type of person who would have someone in a ski mask come to her home at night and sexually assault her. At all times material, the employer had a rule providing for the discharge of any worker who harassed a co-worker.

The first issue to be resolved is whether the employe's discharge was for misconduct connected with his employment in week 20 of 1998, the week ending May 16.

The employe contended that his remark, while admittedly made, was done in a joking context, and should not have been considered a violation of the rule under which he was discharged. However, the commission is unable to ascertain any context within which the conceded remark would be considered humorous. Moreover, the employe acknowledged that he did not have a good business relationship with a female co-worker, believing that she was attempting to have him removed from employment. Overall, the employe's remark was shown to have been intentional and for the purpose of upsetting a co-worker. His actions evinced a wilful and intentional disregard of the employer's interests, and of the standards of behavior that the employer had a right to expect of him.

The commission therefore finds that in week 20 of 1998, the employe was discharged and that his discharge was for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The next issue to be resolved is whether the employe was entitled to benefits at the time he initiated the present claim in week 34 of 1999, the week ending August 21.

The employe had worked for various other employing units during the period between May, 1998 and August 1999. He did earn a minimum of $2,604 in that employment and requalified for benefits by so doing. The employe was paid benefits in the amount of $3,357.00 for which he was not eligible and to which he was not entitled.

The final issue to be resolved is whether the employe is entitled to a waiver of the requirement that he repay benefits previously determined to have been improperly paid.

The employe testified at his hearing that at the time he filed his August 17, 1998 (week 34) claim, he disclosed his employment. The employe contended that the department did not properly investigate the issue. In the commission's experience the telephone claims system is very reliable and if an issue is reported it is picked up and investigated. However, the only evidence in the record is that the employe reported to a department worker that he did in fact work for this employer.  The employe also reported working for a number of other employers, making it more possible that a department worker may have missed the named employer. The commission therefore concludes that the employe did in fact report this employer and that therefore his overpayment was the result of department error, and therefore must be waived.

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22 (8)(c), because the overpayment was the result of a departmental error, and the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f).

DECISION

The decision of the administrative law judge is modified and as modified is affirmed in part and reversed in part. Accordingly, the employe is ineligible for benefits beginning in week 20 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. His overpayment, in the amount of $3,357.00 is waived and he is not required to repay the sum of $3,357.00 to the Unemployment Reserve Fund.

Dated and mailed July 13, 2000
mcneivi.urr : 145 : 3   MC 673  BR 335.03

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearings in this matter. The ALJ noted that he did not believe the employe because his testimony was self-serving. Further, he believed that the telephone claims system is very reliable. He further opined that the employe appeared to be perplexed about the situation. The commission agrees that the telephone claims system is very reliable, however, it disagrees with the ALJ's assessment of the employe's credibility, for the reasons set forth in its decision.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I write separately because while I agree with the misconduct decision, I do not agree with the waiver of the overpayment based on department error. The commission talked to the administrative law judge and he did not find the employe creditable on the issue of reporting this employer by the correct name.

Part of the problem in this case is that the employe did not respond to the adjudicator's interview in 1999. The file contains a report from Vicki Shanovich dated 8/26/99. This report says "I called the claimant on 8/26/99 at 1:00 PM, per the interview notice. The phone number matches the number on the BPMQ. The claimant was not at home. I left a message on the answering machine. I requested a return call by 4:00 PM that same day. I said that I would be making a decision on eligibility based on the information available to me. I left my name and phone number. The claimant did not return my call. No response." The same person also left a message on the employer's voice mail and did not receive a response from that employer. The employer had submitted a UCB-16 report which said "The claimant was discharged for misconduct. The claimant made verbal threats of an offensive nature to another employe." The adjudicator made the decision on the basis of the only information available and that was the employer report so she found a discharge for misconduct.

The case is complicated by the fact that the employe's employment for the employer was in the lag period in 1998. The employe did not report the employment for this employer at that time. Had the employment been in his base period the department would have had wage information from the employer and would have asked about that employment. The employe had 6 employers in the 1998 base period and 5 in the 1999 base period. The error in this case is not department error but employe error so the employe must repay the overpayement.

For these reasons, I would require the employe to repay the overpayment because the department tried to investigate the claim but the employe did not respond with information about this employment when he should have in 1998.

__________________________________________
Pamela I. Anderson, Commissioner

cc: JAMES B SCHMIDT
CONTINENTAL INVESTIGATIONS & SECURITY LTD


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