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

JOHN A NEGRON, Employee

WARNER CABLE COMMUNICATIONS OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02606276MW


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 approximately nine months as a customer service representative for the employer, a communications business. The employee's last day of work was May 31, 2002 (week 22) when the employee was discharged.

As a customer service representative the employee was expected to receive telephone calls from customers who were seeking either service or installation. Upon completing a call, the employee was instructed to enter a code indicating whether it was sales or a service call. Based on that code, the phone automatically went into "wrap up time," allowing the employee to finish what he was doing with that individual customer. Upon completing his "wrap up time," the employee was instructed to push a button that released the "wrap up time" mode and allowed another customer call to come through. During "wrap up time," customer service representatives were unavailable to take other telephone calls and those calls were forwarded to the next available customer service representative.

The employee admitted that he did not use "wrap up time" as set forth in the employer's policy. Rather, the employee devised his own policy to handle the large volume of telephone calls he received daily. Rather than placing a completed telephone call in "wrap up time," as instructed and expected by the employer, the employee would release the telephone call he had just finished, accept another telephone call and immediately place that call on hold and tend to the previous customer's requests. The employee explained that his deviation from the employer's set policy was based on management pressure to use less "wrap up time" and answer more calls.

On May 22, 2002, the employee's supervisor monitored the employee's phone calls for approximately one hour and noted that during that hour the employee failed at least six times to use "wrap up time." Instead, the employee placed six new customers on hold in violation of the employer's policy. The employee admitted that on May 22 he did put calls on hold without speaking to the customers because of the fast pace nature of the job and the fact that lead workers "harassed" customer service representatives when they used too much "wrap up time." The employee did not learn of this May 22 monitoring until approximately May 28 when he was informed that his supervisor had monitored his calls that day and that human resources was concerned by his deviation.

The additional reason for the employee's discharge occurred on May 25 when the employee placed a customer on hold in order to move his car from the employer's parking lot. The employee did this because he had just received an e-mail from security that some construction work was to be done on the parking lot. The employee had a new car and wished to move it out the way.

The issue for review is whether the employee's actions that led to his discharge constituted misconduct connected with the employment within the meaning of Wis. Stat. § 108.04(5). 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."

Although the employer failed to specifically warn the employee that his misuse of the available "wrap up time" was impermissible, the employee admitted attending an office meeting at which time management informed customer service representatives that the employer had a zero-tolerance policy regarding mistreatment of customers. Placing customers on hold came within the employer's definition of mistreatment of customers.

Although the employee's conduct on May 22 could be characterized as an isolated instance, such a characterization would detract from the seriousness of the employee's conduct. The statute does not require that the employer first resort to some lesser degree of discipline other than discharge merely because the conduct was a first offense. The commission is satisfied that the employee intentionally and substantially disregarded the employer's interests when he failed to use the appropriate "wrap up time" available to him and devised his own policy that included placing customers on hold. Furthermore, it was not established that customer service representatives were penalized if they used too much "wrap up time" as the employee alleged. Finally, while it is understandable the employee did not want to subject his car to property damage, the fact remains he should have sought supervisory approval to place that customer on hold rather than just "panicking" and leaving the employer's building to move his car without permission. Given the nature of the employer's business and the employee's job duties as a customer service representative, the employee was aware that placing customers on hold could potentially jeopardize the employer's interests. Therefore, the employee's explanation for circumventing the employer's policy and devising his own policy or protocol does not discount the intentional nature of his conduct.

The commission therefore finds that beginning in week 22 of 2002, the employee was discharged for misconduct connected with the employee's work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to a total of $3552 for which he is not eligible and to which he is not entitled, with in 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), be cause although the over payment 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. § 08.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 22 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee 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 $3552 to the Unemployment Reserve Fund. The employee has requalified as of week 52 of 2002.

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.

Dated and mailed February 27, 2003
negrojo . urr : 135 : 8  MC 687  MC 689 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

Because of credibility issues, the commission conferred with the administrative law judge as to his credibility impressions and assessment. The administrative law judge found the employee credible when he testified that he was "criticized" for using too much "wrap up time" and that this served as a justification for his placing customers on hold. The commission disagrees that such "criticism" justified the employee's decision to devise a different protocol for handling incoming phone calls that included placing calls on hold. This conduct was in direct violation of the employer's policy and constituted mistreatment of the employer's customers. The commission also found the employee's actions on May 25 inexcusable and intentional especially when other alternatives were available to the employee.

cc: Warner Cable Communications - Milwaukee, WI 53212


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