Wis.LIRC UC Decision: Alveshire, Chantel - March 1, 2001 - MC 666.01 - Relations with co-employees; MC 687 - Violation of company rule - going through files in secure office and disclosing information found there about promotion, salary and probationary status information to other employes - documents can contain confidential information even though not stamped as such and even though employer does not specifically define "confidential"

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

CHANTEL S ALVESHIRE, Employee

MENOMINEE CASINO BINGO HOTEL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00402691AP

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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 37 of 1999, and until seven weeks elapse since the end of the week of discharge and the employee earns wages in covered employment after the week of discharge equaling at least 14 times the weekly benefit rate that would have been paid had the discharge not occurred. Department records reflect that the employee requalified for benefits as of July 23, 2000.

Dated and maile March 1, 2001
alvesch.usd : 132 : MC 666.01 MC 687

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found she was discharged from her employment and for misconduct connected with her work. The employee argues in the petition that she was not aware that the documents at issue were confidential. However, the employee had previously been informed that the area around the clerical assistant's desk was off limits and that as a shift supervisor she was to hold all information passing through the office as confidential. The employee notes in the petition that the employer did not have a definition of confidential information that was approved by management. However, clearly a document can contain confidential information even though not stamped as such and even though the employer does not specifically define the work "confidential." A reasonable person would know that a document in a secure office containing promotion, salary and probationary status information regarding another member of management is confidential. Even if the employee believed she had a right to rifle through the file box does not explain why she believed it appropriate to seek out another worker and share that information with that worker.

The employee argues that the ALJ used only half the holding of Boynton Cab. The ALJ used the portion of Boynton Cab that defines misconduct and found that the employee's conduct met that definition. The commission cannot agree that quoting a portion of Boynton Cab means that the ALJ did not consider the unquoted portion.

The employee argues that because she disclosed information about her supervisor, who ultimately decided to discharge her, the supervisor's decision should be held suspect. The commission disagrees. What is suspect is the employee's contention that she did not know it would be adverse to the employer's interest for her to obtain and disclose her supervisor's new position and salary to a subordinate.

The employee requests further hearing to take testimony on whether the documents in question were confidential. While the commission does have the discretion to order the taking of additional evidence, that authority is exercised only in a few exceptional circumstances. Here, there was adequate notice that the hearing would be the parties' only opportunity to present evidence. There is no credible and convincing evidence that this opportunity was improperly limited at the hearing, or that a party has discovered material noncumulative evidence since the hearing that the party could not have known of before the hearing. The employer presented sufficient evidence at the hearing to permit a finding that the documents contained confidential information.

Finally, the employee states that she attempted to obtain a postponement of the October 31, 2000, hearing and her request was denied. The department file reflects that the hearing notice scheduling the10:15 a.m. hearing on October 31, 2000, was mailed on October 19, 2000. The employee's attorney contacted the hearing office requesting a postponement on the morning of the hearing. Based on the information before the commission, the record does not establish that the hearing office abused its discretion in denying the late postponement request.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc:
Attorney Gary S. Dodge Sr.
Attorney Thomas J. Parins Jr.

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uploaded 2001/03/02