BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


HENRY A. OSTRICKI, Employee

B P S GUARD SERVICE, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 88-004144


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal dated March 1, 1989 is affirmed. The employe-appellant's request for a rehearing on the merits is denied. The Appeal Tribunal Decision issued on December 15, 1988, is reinstated. Accordingly, benefits are denied based on work with the employing unit. The employe is also ineligible for benefits based on work by other employing units beginning in week 44 of 1988, and until he has again worked within at least seven weeks in covered employment and has earned wages for work actually performed in covered employment equaling at least 14 times his weekly applicable benefit rate with the employer against whom benefits would be otherwise chargeable. He is required to repay the sum of $3,400 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on November 3, 1988, is set aside.

Dated and mailed April 5, 1989
110 : CD2001  PC 712.6  PC 717  MC 655

/s/ Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

Request for rehearing --The employe argues that the December 7, 1988 letter from the employe's attorney to the Department requesting a postponement must have been received by the Department prior to the hearing, since that letter was the first indication that the Department had been given that the employe had retained the attorney who wrote the letter, yet the Appeal Tribunal Decision issued on December 15, 1988 indicated on its face that a copy was being sent to that attorney. The logic of this argument would be compelling if in fact the letter of December 7, 1988 was the only information provided to the Department indicating that the attorney in question was representing the employe. However, the Commission is not convinced that this is the case.

It is undisputed that the legal assistant to the employe's attorney telephoned the Madison Hearing Office shortly after the hearing and spoke to an employe there about the case. In that conversation, the attorney's legal assistant indicated, among other things, that the attorney was representing the employe. If this telephone call was made to the Madison Hearing Office before the Appeal Tribunal Decision was issued, it could explain the presence of the attorney's name and address on the Appeal Tribunal Decision. Therefore, the question of when this telephone call took place is critical.

The legal assistant, Lorraine Auxilly, testified that when she made the call to the Madison Hearing Office she was advised that she could submit a letter requesting that the decision be set aside, and that she prepared such a letter on the same day as the telephone conversation with the Madison Hearing Office. That letter is dated December 16, 1988, and Auxilly testified that it must have been on that date that she had the telephone conversation with the Madison Hearing Office. However, the employe to whom Auxilly spoke, Patricia West, testified that when Auxilly called she was calling about a hearing that had been held on the previous day. The hearing was held on December 14, 1988; according to West's testimony, therefore, Auxilly would have made the call to her on December 15, 1988.

The Commission would have been more inclined to credit Auxilly's testimony but for the fact that there was a material inconsistency between her testimony at hearing and the representations in her affidavit filed at hearing and received into the record as Exhibit 2. In her affidavit, Auxilly stated that "this affiant subsequently received the Appeal Tribunal Decision issued December 15, 1988 indicating that claimant's attorney did not appear", and "this affiant then immediately placed a call to the unemployment compensation office to indicate that claimant's attorney had requested a continuance and that there appears to be an error'". However, in her testimony at hearing, Auxilly testified that the employe had contacted her and said that he had received a decision, and that she then called the Department to ask why the continuance had not been granted. The inconsistency between these statements is as to whether Auxilly made the call because the Birnbaum Law Office received a copy of the Appeal Tribunal Decision and recognized that there was a problem, or because the client called the law office and advised them that he had received a copy of the Appeal Tribunal Decision. The Commission considers this inconsistency to relate to a material. issue because an assertion that the reason for the call was a receipt of the Appeal Tribunal Decision tends to establish that the call would have been made on December 16, 1988, since the reason (the receipt of the decision) could have not arisen until that date.

Because of this inconsistency in Auxilly's version of the events, the Commission credits the testimony of Patricia West that the telephone call from Auxilly was received on December 15, 1988. The Commission further considers that it is not unlikely that the reason that the Appeal Tribunal Decision shows the name of the attorney in question is because this information was communicated to the Department in Auxilly's call on December 15, 1988 before the Appeal Tribunal Decision was issued, and was incorporated into that decision before it went out. For these reasons, the Commission is not convinced that the presence of. the attorney's name and address on the Appeal Tribunal Decision establishes, as the employe has argued, that the Madison Hearing Office must have received the December 7, 1988 letter requesting a postponement.

In any event, there remains the issue of whether the belief of the employe and his attorney that a postponement request had been made and would be granted constituted adequate grounds for them to fail to appear at the hearing. The Commission believes that, even if the employe and his attorney believed in good faith that the postponement request had been mailed and received, the Administrative Law Judge correctly held that good cause for the failure to appear at the hearing was not demonstrated, since neither the employe nor the attorney had been advised that the postponement had been granted. Although the attorney testified that in his experience requests for postponements of hearings such as the one made in this case were routinely granted, and that he thus anticipated that it would be granted here, the decision to rely on this without confirmation from the Department involved not only the risk that the postponement would be denied (which may be assumed, for the sake of discussion, to be minimal) but also the risk that the request for the postponement would, through some failure, not be received and thus not be formally acted upon. The Commission is not prepared to hold that the mailing of a request for a postponement of a hearing constitutes good cause for a failure to appear at that hearing in the absence of any confirmation from the Department that the request has been granted.

Misconduct Issue --The Appeal Tribunal Decision issued on December 15, 1988, based on the record made at the December 14, 1988 hearing, found that the employe was discharged for misconduct connected with his work, within the meaning of section 108.04 (5), Stats. Although that Appeal Tribunal Decision was subsequently set aside by the Administrative Law Judge when the employe requested rehearing, it was reinstated by the Administrative Law Judge who issued his Appeal Tribunal Decision on March 1, 1989 denying the request for rehearing. The employe's petition for review of the March 1, 1989 Appeal Tribunal Decision therefore places the December 15, 1988 Appeal Tribunal Decision before the Commission for review.

The employe was a supervisor for the employer, a company providing security guard services on contract to institutional clients. He was assigned to work in a nuclear power plant, supervising a staff of six armed security guards. He had the rank of sergeant. The employer discovered a photograph of the employe lying back in a reclining chair, wrapped in a blanket, in front of a television set, in a room on the premises of the nuclear power plant where the employe was assigned to work. Although that room had occasionally been used by the employer in this case for training of its security guards, it was part of the premises of the client nuclear power plant, the television set was present in the room only for the use of employes of the nuclear power plant, and there were no circumstances under which the employe herein would have been authorized to be present in that room, wrapped in a blanket in a reclining chair watching a sports event on television. He certainly would not have been authorized to engage in such conduct while he was on duty. Although the employe was provided a break period, his responsibilities as a supervisor and as a response team leader also required that he not engage in such conduct during breaks. If the employe had engaged in the conduct in question before the start of or following the end of his shift, he would have been in violation of rules promulgated by his employer prohibiting its employes from loafing and/or loitering on client property or remaining on the premises of the client upon completion of tour of duty. The photograph thus established that the employe had engaged in conduct on the premises of the nuclear power plant that was contrary to the rules promulgated by his employer.

In a document received into the record as Exhibit No. 3, the employe conceded that he had been in the room on some occasions watching sports events on the television. The employe admitted, in that document, that he should never have been in that situation to have his picture taken.

Although the employer's code of conduct describes the offenses of loafing and/or loitering on duty or on client property and failure to leave the client premises in a timely manner upon completion of tour of duty as being "CATEGORY D" offenses normally subjecting an employe only to a verbal warning, this does not establish that the actions of the employe at issue here were not misconduct within the meaning of the Unemployment Compensation Law. The employer's code of conduct is applicable generally to all of its employes, and to all of its operations. The employe here was not merely an employe, but was a supervisor, with responsibility over other employes. Additionally, he worked in a nuclear power plant subject to federal regulation. The employer could legitimately have been concerned that for the employe to engage in such conduct would set a bad example for the employes he supervised, would create a poor impression of the employer on the part of the client company, and would constitute a violation of federal regulations of the nuclear industry, which, according to the testimony of the employer's representative, prohibit such inattentiveness to duty on the part of guards of nuclear power plants. The business of guarding nuclear power plants involves special risks and is especially important. In the context of a working nuclear power plant, concerns about infiltration of the plant by outsiders, and theft of nuclear material, are acute. The seriousness of the employe's conduct, for purposes of evaluating the applicability of the "misconduct" standard enunciated in the Unemployment Compensation Law, must take into account the seriousness of his job. The employe was not a night watchman stationed at a warehouse stocked with cartons of innocuous materials. In such a context, his actions might not have constituted misconduct. They did, however, constitute misconduct in the context of his rank and his assignment here.

cc: Joseph French, District Manager
c/o Burns International Security Services

James G. Birnnbaum
Attorney at Law
Davis, Birnbaum, Joanis, Marcou & Colgan


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