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


DAVID R ARNDT, Employee

GENERAL MOTORS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00003372JV


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 employee worked as a pipefitter for 14 years for the employer, an automobile manufacturer. His last day of work was May 24, 2000 (week 22).

In December of 1999 the employee was disciplined for engaging in an argument with a security guard. He was not intoxicated at the time but had been drinking. He was suspended for one week. On May 24, 2000 the employee left for a half- hour lunch. He went to a tavern at 7 p.m. and drank for five hours. He returned to work at approximately midnight. His supervisor was waiting for him when he returned. Ultimately the police were called to the employer's facility. The employee was discharged for malicious and aggressive physical contact with a member of management and threatening and intimidating members of the union and other members of management while under the influence of alcohol.

The initial issue to be decided is whether the employee's actions, which led to his discharge, constituted 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 employer did not establish that the employee engaged in a physical confrontation with the supervisor. However, the employee left work for five hours during his work shift. The employee returned to the employer's facility in an intoxicated state. The employer has a right to expect an employee who leaves for a half hour lunch will be gone for one-half hour. The employer has a right to expect that when an employee returns to the employer's facility he will not be intoxicated. The standard for finding misconduct is whether an employee's actions evinced an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee. The employee's actions did in fact represent such a disregard of the employer's interests. For these reasons, the commission finds that the employee's discharge was for misconduct connected with his work.

The commission therefore finds that in week 22 of 2000 the employee 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 employee was paid benefits in the amount of $5,185 for weeks 23 through 39 of 2000, for which the employee was not eligible and to which the employee 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 employee. 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 employee 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 employee is ineligible for benefits beginning in week 22 of 2000 and until seven weeks elapse since the end of the week of discharge and the employee 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 employee is required to repay the sum of $5,185 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on May 25, 2000 is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 employee 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 October 3, 2000
arndtda.urr : 132 : 6 : MC 653.1

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the administrative law judge. The commission reverses the appeal tribunal decision based on undisputed facts but reaches a different legal conclusion.

cc: JIM UNDERHILL
C/O GENERAL MOTORS

ANTHONY KLEMER
C/O GENERAL MOTORS


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