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

DAWN M FORSTER, Employee

MARITIME SAVING BANK, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02003296WK


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 more than 28 years as an account service representative for the employer, a financial institution. Her last day of work was April 10, 2002 (week 15), when she was discharged. Following the discharge, the employee filed a claim for unemployment insurance benefits.

The employer's handbook indicates workers are not to divulge any information about the employer or its customers, as such information is confidential and personal. The employee had been given her own copy of the handbook. The employer keeps all wage information confidential. Workers are reminded of the policy each time someone gets a raise increase. The workers are asked not to discuss their wage. The purpose of the policy is to prevent workers from knowing the hourly wages of co-workers.

As part of the employee's work duties, she checks a printout of account transactions daily to make sure the coding is proper. The printout is done by specific account number and lists the name tied to the account, plus the transaction type, amount and source. The printout includes all workers' account transactions, so that the employee knew what each worker was paid. Part of that printout also contains total information.

The vice president told the employee she could give two workers part of the report for their jobs. The assistant vice president told the employee she could give the first page, a payment on participation loans, to the co-worker the assistant vice president supervised.

The employee, on April 5 and 9, 2002, noticed that the co-worker's supervisor and all managers had received bonuses. The information was apparent through the printout she audited. She told the co-worker, "I guess they got a bonus again." She told the co-worker this because the employee and the co-worker had worked for the employer for a long time, and at one time everybody received an annual bonus. The employee's feelings were hurt because she worked hard and felt she did not get recognition. She knew that as a result of the comment the co-worker would know the co-worker's boss received a bonus.

The co-worker's supervisor was an assistant vice president. The employee had never given the assistant vice president copies of the report. On April 9, 2002, the employee told the assistant vice president that the employee noticed the assistant vice president, along with some other people, had received a bonus. The employee mentioned no specific names. The employee asked why the bonuses were given. The assistant vice president told her it was because earnings for the quarter were good. The employee told the assistant vice president that her bonus was not as much as others' bonuses. The employee said she noticed that some workers from a subsidiary of the employer had received bonuses. The employee asked why those workers received a bonus. The assistant vice president responded that she did not know. The employee congratulated the assistant vice president on receiving a bonus.

The assistant vice president was uncomfortable with the employee's statement because she did not want the employee looking at her personal information. The assistant vice president further noted that although the employee had been authorized to give the co-worker the ACH report, she only authorized the employee to give the co-worker the first page of the report. It was possible that there would be information on there that would let the co-worker see a copy of the direct deposits, but the assistant vice president's should not have been on there because they are in account number order.

When the employer's management learned of the employee's actions, management considered the employee's behavior it discharged her for divulging this information.

The issue that must be decided is whether the employee's discharge was for misconduct connected with her work.

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 employee was upset about the fact that members of management had received a bonus, but she had not. The employee intentionally informed her co-worker that the co-worker's supervisor had received a bonus. The employee was aware that the co-worker had not received a bonus. While the employee argued that the co-worker would have had access to this information, the assistant vice president credibly testified that this information should not have been on the report the co-worker received. Further, even assuming that the co-worker had access to the report, it was not certain she would have either looked at the direct deposit of her supervisor, or been aware that the supervisor's deposit was larger than it usually was.

In addition, the employee then asked the assistant vice president why she had received a bonus. The assistant vice president clearly was aware that she had received a bonus. However, the employee's comment made the supervisor aware of the fact that the employee had been tracking the amount of the assistant vice president's regular deposit to the point that the employee was aware when the deposit was larger than usual. In addition, the employee informed the assistant vice president of the fact that management in a subsidiary of the employer's had also received the bonus. She requested further information about the bonuses given by the employer and the employer's subsidiary.

The employee was or should have been aware that the employer forbid the divulging of this kind of information to co-workers to limit discontent over differing salaries. The reason the employee divulged this information was because she was upset. The employee's position was that the people she divulged this information to would have access to the reports and therefore the information was not confidential. However, the employer's witnesses indicated that the workers in question should have access to only the first part of the report, and that even if they looked at that the assistant vice president's direct deposit should not have been on that page. Further, the employee asked for information about the bonuses, and also told the assistant vice president that workers in one of the employer's subsidiaries had received bonuses. While the employee was understandably hurt because others received a bonus and she did not, her actions in divulging this information to the assistant vice president upset the assistant vice president. It is foreseeable that the employee's actions would have that effect.

Given the circumstances of this case, the employee's actions in discussing the bonus with her co-worker and the assistant vice president amounted to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 15 of 2002 the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 15 through 23, weeks 25 through 29 and week 31 of 2002, amounting to a total of $4,610.00 for which she was not eligible and to which she 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 15 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 the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,610.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on April 11, 2002, is set aside. If benefits become payable based on other 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 March 14, 2003
forstda . urr : 145 : 1  MC 666.01  MC 687

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found that the information was not confidential because in her opinion the employer's witness admitted on cross-examination that the co-worker would have authorization to view the report, but that the vice president initially said the co-worker would not see the report. She did not think that the vice president was aware of all the information contained on the report, and that the employee was more familiar with this information. Therefore the ALJ believed the employee's testimony that the workers she talked to would have had access to this information. The commission understood the testimony of the employer's witnesses to mean that the co-worker would only have access to part of that report, and the part of the report the co-worker had access to would not have contained the assistant vice president's deposit. Even assuming that the co-worker and the assistant vice president would have had access to this information, the employee could not have known whether the vice president would be looking at parts of the report that did not pertain to her job. Since the employee had never given the vice president the report, she could not be certain that the vice president was aware of the information. Finally, and perhaps most importantly, the employee's actions were motivated by the fact that she was upset with the employer. She told the assistant vice president that others had received larger bonuses and she told her co-worker that the co-worker's boss had received a bonus. Comments of this nature are divisive, at best.

cc: Maritime Savings Bank (West Allis, Wisconsin)


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uploaded 2003/03/31