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

ROBERT H NILSSON II, Employee

TCF BANK, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01608674MW


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 for about nine months as a branch manager for the employer, a bank. His last day of work was May 24, 2001 (week 21), when he was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

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' with in the meaning of the statute."

The employer discharged the employee for a variety of reasons. On May 18, the employee left the branch at 12:15 p.m., knowing that $540 was missing from a cashier's drawer and that the regional manager was coming in to investigate this matter. The regional manager then discovered numerous other instances of unsatisfactory conduct.

The employer believed that the employee should have been at work on May 18, when the teller drawer shortage was being investigated. However, the employee had requested time off in advance to take his child to the doctor. While his failure to make other arrangements for his child may have been a disappointment to the employer, it did not demonstrate a disregard of the employer's interests.

The employer also discharged him for failing to balance the vault on May 11, 12, and 13. He assigned this function to two other management personnel on Monday, May 14. The employer indicated that he was to balance the vault each day. The employee argued that Friday, Saturday and Sunday were one business day and therefore he only needed to balance the vault once. The employer's policy, however, provided that the vault must be balanced daily, Monday through Saturday. May 11 was a Friday, and May 12 was a Saturday. Thus, according to the employer's policy, the employee should have balanced the vault on both of those days. The employee further asserted that he was not trained on how to balance the vault. The employer testified that all managers receive such training. In addition, the employee signed off on the vault-balancing sheet and should not have signed the sheet if he had not participated in balancing the vault and did not know if the vault balanced. The employee stated that he signed the sheets because he did not want to mess up the audit by the federal auditors. He simply wanted to get through the day. However, the employee was the branch manager, and should not have been signing documentation indicating that something was correct when he had no idea whether it was correct. In addition, he should have ensured that he knew how to balance the vault or requested training on it, rather than simply failing to balance the vault for three days, until he could assign this task to another worker.

The employer further asserts that on May 14, the employee failed to follow the employer's dual control policy that requires two individuals be present to balance deposits from the automatic teller machine (ATM). The employee counted the contents of the ATM envelopes alone in his office. The employee indicated that he was aware of the dual control policy. In addition, he knew that balancing the ATM envelopes on his own was a violation of the policy but that other people might bend the rule, to the extent that a supervisor would balance the envelopes near the drive through teller. However, the employee specifically indicated that he was aware that he was violating the policy. When there are envelopes containing cash, questions can always arise when there is a shortfall. Therefore the importance of a policy which requires two people to count the cash and checks in the envelopes is clear. In addition, the employee was the manager of the branch. The employee should have ensured that his subordinates were following the employer's policies, rather than viewing the fact that some workers bent the rule as his excuse to break the rule completely. The employee knowingly violated two important employer policies. His actions in this regard demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 21 of 2001 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 22 through 24 of 2001, amounting to a total of $939.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

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 21 of 2001 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. He is required to repay the sum of $939.00 to the Unemployment Reserve Fund.

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 March 12, 2002
nilsoro . urr : 145 : 1  MC 691

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found that the employee was credible. The ALJ indicated that the employee had not worked for the employer long, and in fact started at a different branch where he had been involved mainly in sales. The ALJ also believed that management would rely heavily upon their staff as the employee did in this case. He also thought it credible that a manager would sign off on something other people had completed, such as the vault balancing sheets, because his coworkers had been at the employer for years. Further the ALJ credited the employee's statement that the weekend constituted one business day. The commission did not find the employee's statement in this regard to be credible because the employer's procedures specifically indicated that the vault was to be balanced on both Friday and Saturday. The commission did not view the employee's failure to follow the employer's dual control policy as the result of a lack of experience because the employee specifically indicated he was aware of the policy, but decided not to follow it because he believed others were not following it. Further, the employee had some experience in banking as he had worked for another bank prior to beginning his employment with the employer.

cc: Attorney Kaye K. Vance


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