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

STACY A HAINES, Employee

ASHLEY FURNITURE INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02008056LX


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 full-time for about two years as a marketing coordinator for the employer, a furniture manufacturer. She previously worked part-time for about five years in the employer's credit department while going to school. Her last day of work was October 16 and the employer discharged her on October 17, 2002 (week 42).

On October 14, 2002, the employee composed and sent an e-mail from her work computer to 13 persons about the only supermarket in the town of about 2,000 people where the employer is located and near her home. The e-mail stated in graphic detail that the new ownership had abruptly and callously dismissed all its current employees and literally demanded the shirts off their backs if they contained the store logo. It also stated that the store was replacing locally grown chicken with stock form a large chain and increasing its markup. It concluded:

These people need to know you don't do this to people, especially in a small town where word travels. We know the newspaper would not print this but e-mail can spread like wildfire. If this infuriates you, forward to everybody you know in this area.

The employee sent the message on her personal e-mail account to the recipients at their personal e-mail addresses, so that the employer's name was not associated with the original message. The recipients were family and friends, but eight of them also worked for the employer. However, the employer's workforce in this town slightly exceeds the town's population. As recipients forwarded the e-mail, some of the employer's workers received the message at their work e-mail address, and some forwarded it over the employer's computer network. The employer received a contact from police authorities concerning the message and was concerned that its generation and transmission over the employer's computer network exposed the employer to a defamation claim by the supermarket. The employer's policy on internet, e-mail and computer use permitted limited personal use but prohibited transmitting chain letters, "spamming," distributing derogatory materials, promoting outside causes, and conducting activity harmful or detrimental to the employer. The employer's basic work rules also prohibited inappropriate and unauthorized use of company property.

The issue to be decided is whether the employee's discharge was for misconduct connected with the 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 commission finds that the employee's conduct did not go beyond a good-faith error in judgment. The employee took the employer's address off the e-mail so that it would not appear to those receiving the e-mail. The employee did not refer to the employer. The e-mail does not identify, reference or implicate the employer in any way. It may have been foreseeable, given the size of the employer's work force and the size of the community, that eventually others might e-mail the employer's workers at their work and those workers would forward the e-mail without taking the same precautions, or using the same discretion, as the employee did. That the employee did not consider this possibility does not establish that she engaged in intentional and willful conduct in disregard of the employer's interests. The employee did encourage her recipients to "spread the word." However, it remained their choice whether to do so and to send the e-mail to individuals at their work addresses. Further, the commission believes it is stretching to claim that the employee's actions subjected the employer to a defamation suit.

Finally, the employer acknowledged at the hearing that it was the content of the e-mail that led to the employee's discharge. The fact that the employee used a minimal amount of time at work to compose and send the e-mail, and used the employer's computer and communications system to do so, were not the reasons for the employee's discharge.

The commission therefore finds that in week 42 of 2002, the employee was discharged but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 42 of 2002, if she is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed May 28, 2003
hainest . urr : 132 : 1 : MC 675  MC 690 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he did not consider the matter to revolve around a dispute as to credibility. The ALJ indicated that the employee was very candid about her actions. The commission has reversed the ALJ because it disagrees with his conclusion that the conduct the employee engaged in met the legal definition of misconduct.


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uploaded 2003/06/06