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

ERICK D GORDON, Employee

AMERITECH SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02603625MW


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 two years for the employer. His last day of work was March 8, 2002. He was discharged on March 21, 2002 (week 12).

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's 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 has a call policy that provides that the phone system is for business purposes only. It states that personal calls are not to be made or accepted while in work mode. On December 7, 2001, the employee was warned for making a personal call while open for ACD calls. The warning indicated that the topic had been discussed previously and it had also been covered in team meetings. On February 11, 2002, the employee signed a last chance agreement with the employer. The back to work agreement provided that while the employee was "on Company time, it is agreed that I will not make any personal calls (outbound) for any length of time."

On March 7, the employee got a call while he was sitting at his desk, and did not answer the phone because the Back to Work Agreement said he could not make or receive personal calls. He knew his mother was calling because his phone had caller identification. He knew what the call was about because he called his mother during the break because his mother was sick and the employee needed someone to pick up his son from day care. He testified that he talked to his mother during break at about 5:00. He called his mother because she was sick and he needed someone to pick his child up from daycare. The employee's mother told him she would try to have somebody pick him up and pay the day care while the employee was at work. He talked to his brother while he was on break at around 6:12 p.m. He also thought that he called his mother after 6:12 p.m. His brother said his son was not at the day care. The employee testified that he then called his mother to make arrangements for somebody to pick up his son at day care, despite the fact that he testified immediately prior to this that his brother told him that his son was not at daycare. The employee then said the arrangement with his mother happened earlier, and that the son's mother called while the employee was talking to his brother and told him the boy was at her aunt's house. The employee did not inform his supervisor that there was an emergency situation and that he needed to use the phone. The employee indicated his child needed to leave the aunt's house by 8:00 p.m. because he had school the next day.

The employee had lunch later, but did not go to pick up his son. He did not call his mother. The employee left work at 9:40 p.m. but sat on the curb outside his house talking for about 15 minutes before he went inside. He did not use his cell phone on the way home to call his mother. He figured when he got to the house, if his son was home he was home but if not, he would take the necessary steps. The mother called around midnight and said the boy was staying with her.

The employee was discharged on March 21, 2002 for violating his last chance agreement.

The employer asserts that the employee's discharge was for misconduct connected with the employee's work. The employee had been warned about making personal phone calls at work, in violation of the employer's policy. In fact, the employee had recently signed a last chance agreement that indicated he was not to make personal calls at work. The employee's actions in ignoring the call when it came in on his phone and going to the break room while he was still logged in as working suggest that he was aware of the rule, but wished to violate the rule without getting caught. The commission agrees that a missing child is an extremely serious matter, and a parent could certainly be excused for accepting a personal phone call in a situation that involved the safety of a child. However, in this case, it was not clear that the child was missing, or that there was cause for concern about the safety of his child. The employee gave inconsistent testimony regarding the people he called, and his testimony regarding the situation with his child was confusing and unlikely. The employee did not ask his supervisor for permission to use the phone presumably because this was an emergency situation. However, he did not immediately answer the call when it came in, but went to the break room so that he did not have to make or answer the call from his phone. This suggests that the situation was not so urgent that he could not have asked his supervisor for permission to call his mother. In addition, it was not clear that he knew his son was missing when he called his mother. Further, his behavior after speaking to his mother calls into serious question his allegation that the situation was an emergency.

The employee's actions, in making personal phone calls after warnings and after signing a last chance agreement that provided he would not make personal phone calls while in work mode, demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 12 of 2002, 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 12 through 49 of 2002, amounting to a total of $10,602.00 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 of 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. The employee is required to repay the sum of $10,602.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on March 22, 2002, 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 December 18, 2002
gordoer . urr : 145 : 1  MC 696

/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 in this matter. The ALJ did not find the employee's behavior in calling his mother from the break room to be inherently suspicious. The ALJ did not find the employee to be particularly credible, and did not think the employee had any reasonable basis for thinking that he needed to call his mother. However, the ALJ found the employee's mother to be an extremely credible witness. The commission notes that it was the employee who violated the employer's work rule. The employee's testimony was inconsistent and did not support his assertion that he believed this to be an emergency situation. The employee's mother testified she called him only once, to tell him that his son was missing. Therefore, the employee could not have known, before answering the phone call from his mother, that there was an emergency situation. Therefore, the commission concludes that the employee's actions amounted to misconduct connected with his work.

cc: 
Retail Specialists
Ameritech Services, Inc. (Hoffman Estates, Illinois)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/01/03