P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



Hearing No. 02002908MD

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:


The employee worked 19 years as a conference coordinator for the employer, an insurance and financial service company. The employee's last day of work was March 11, 2002. The employee was discharged on March 14, 2002 (week 11).

The employee received a ten-day suspension without pay in April 2000, for using her work telephone to conduct business related to her work for a real estate company. The employer warned the employee at that time that similar conduct would be "grounds for immediate termination" (Exhibit 6).

In 2002, the employee was considering opening her own exercise club and ultimately did on or about April 1 2002. The employee used her work telephone to contact exercise facilities and to otherwise investigate the possibility of starting her own exercise club, as noted below:

 1.  12/11/01 call to Mt. Horeb, WI lasting 52 seconds
 2.  12/18/01 call to Waco, Texas, lasting 2 minutes, 2 seconds
 3.  1/24/02 two calls to Waco, Texas, lasting 6 seconds, each
 4.  1/24/02 call to Mt. Horeb, WI, lasting 28 seconds
 5.  1/31/02 two calls to Mt. Horeb, WI, lasting 42 seconds and 2 minutes and 32 seconds, respectively.
 6.  2/21/02 call to Phoenix, Arizona, lasting 23 minutes 22 seconds
 7.  2/21/02 toll-free call lasting 38 seconds
 8.  2/21/02 toll-free call last 44 seconds
 9.  2/21/02 call to Oklahoma lasting 44 seconds
10. 2/25/02 two toll-free calls lasting 5 minutes 40 seconds and 14 minutes 26 seconds, respectively
11. 3/5/02 two calls to Mt. Horeb, WI lasting 3 minutes 54 second and 2 minutes 10 seconds, respectively
12. 3/5/02 long-distance directory assistance lasting 32 seconds
13. 3/6/02 two calls to Texas, one 6 seconds and one 34 seconds, respectively
14. 3/7/02 call to Texas lasting 26 seconds.

The employer also attributed to the employee calls made to a new publishing company in Black Earth, WI. However, one of those calls was made on the employee's day off leading the fact finder to believe that the employee did not make those calls. Instead, the person the employee was training made the calls using the employee's work phone.

One of the employer's assistant vice-presidents made the decision to discharge the employee for the telephone calls noted above. He was unaware at the time that the employee had permission from her supervisor to make some of the calls. Specifically, the employee on occasion would ask her supervisor if she could stay at her desk and do personal work over her break or lunch hour. The supervisor granted these requests, and such permission included use of the employer's telephone.

The employer however contends that it did not give the employee permission to make or receive the excessive number of non-employer business calls that she did, as noted above. The employer also argues that the phone logs indicate a pattern in which the calls were either made or received prior to the employee's one-hour lunch break. Even though the employee's lunch period varied from day to day, the record supports this pattern.

The issue for review is whether the employee's discharge is for misconduct. 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 met its burden of establishing that the employee was discharged for misconduct. The employee had been suspended in 2000 for similar excessive personal use of the employer's telephone. Despite this suspension and warning that similar conduct could lead to termination, the employee committed similar behavior in 2002, which led to her discharge. The employee was fully aware that excessive unauthorized use of the employer's work phone would result in discharge. Although some of the calls were not particularly long in nature, they were numerous and do establish a pattern that these calls were not made or received during the employee's lunch break as she alleges, but rather while she was on employer time. The employee was therefore discharged for misconduct connected with her employment.

Having determined that the employee is ineligible for benefits based on the discharge for misconduct it must be determined whether the employee received any benefits in error, the amount of those overpaid benefits, and whether those benefits must be repaid to the department.

Department records show the employee applied for unemployment benefits in week 12 of 2002 (calendar week ending March 23, 2002). Thereafter, the employee was paid benefits of $324.00 for each of the following weeks 12, 13, 14, 16, 17, 18, 20 and 21 of 2002, amounting to $2,592.00. These are benefits to which the employee is not entitled due to the discharge for misconduct.

Generally, a claimant who receives unemployment insurance benefits to which he or she is not entitled must repay those benefits to the department. However, recovery shall be waived if the overpayment occurred as a result of department error and if the employee's fault or misrepresentation did not cause the overpayment. Here, there is no evidence of department error.

It is therefore found in week 11 of 2002, the employee was discharged for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

It is further found that the employee was paid benefits in the amount of $2,592.00 to which she is not eligible within the meaning of Wis. Stat. § 108.03(1) and to which she is not entitled. The employee must repay the entire sum to the department because that portion of the overpayment was not the result of any error by the department, within the meaning of Wis. Stat. § 108.22(8)(a) and (c) of the statutes.


The appeal tribunal decision is modified and as modified is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 11 of 2002, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,592.00 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account. The initial benefit computation ( Form UCB-700) issued on the March 17, 2002 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed September 27, 2002
jurisma . urr : 135 : 8   MC 687  MC 696

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


The employee argues that the biggest error in the appeal tribunal decision was the reflection that two of her questionable phone calls lasted approximately six hours. The commission's modification reflects the accurate time for those two calls as supported by the employer's phone logs submitted into evidence.

The employee argues that the employer mistakenly testified that the employee's supervisor was absent on March 5 as the witness must have had his days mixed up when he testified. The employee argues that her supervisor's attendance records would show this. The commission will not disturb the ALJ's credibility determination in this regard. The employer's witness credibly testified that the employee's supervisor was absent on March 5 and therefore was not present to give the employee prior approval to make and or receive non-work related calls.

The employee also argues that the two March 5 phone calls in question were reported and admitted to as being placed by her co-worker who did work from the employee's desk the entire day of March 5. Again, this was not established in the record, in part because this co-worker did not appear at the hearing. The commission is satisfied that the ALJ reasonably concluded that the employee made those two calls while her supervisor was absent and without prior approval.

The commission is satisfied that the phone logs represent an excessive pattern of abuse regarding the employer's telephone policy prohibiting excessive personal use of its telephones. Additionally, the commission notes that on or about April 1, 2002, the employee opened up her own business. Therefore the number of phone calls made prior to the employee's discharge allow a fact finder to infer that those phone calls were being made for personal reasons including the starting of the employee's own business. Finally, the commission notes that the employee had been warned and suspended in 2000 for similar excessive personal use of the employer's telephones. Despite this warning and suspension, the employee committed similar behavior in 2002, which lead to her discharge. Under the circumstances, the commission is satisfied that the record amply supports a finding that the employee's discharge was for misconduct connected with the employment within the meaning of Wis. Stat. § 108.04(5) for the reasons set forth in its decision.

Cuna Mutual Insurance
c/o Fedlicia A. Schoenenberger, Labor Relations Consultant

Appealed to Circuit Court.  Affirmed March 20, 2003.  [Summary of Circuit Court decision]

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uploaded 2002/10/04