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

JACOB P KUJAK, Employee

ASHLEY FURNITURE INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02005804LX


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 the employer, a furniture manufacturer, for approximately six and a half years, most recently as a lead warehouse worker. He was discharged on July 10, 2002 (week 28).

The employee's duties required him to be in regular contact with personnel at the employer's retail store. The employee and other workers, both at the warehouse and in the store, had a practice of engaging in practical jokes and pranks. On July 6, 2002, the employee telephoned the store and, using a fake British accent, requested directions to the store. The sales person who answered the call, Victoria Gamroth, did not understand the employee and transferred the call to a co-worker who recognized the employee's voice and related the prank to others in the store.

The following day the employee telephoned the store from the warehouse and, using the same fake British accent, stated, "There is a bomb in your building." The individual on the other end of the line, again Ms. Gamroth, asked, "what?," and the employee repeated the remark. Ms. Gamroth put the employee on hold and asked a co-worker to pick up the telephone. However, by the time the co-worker could do so, the employee had already hung up. Ms. Gamroth, who had not recognized the employee's voice, reported to another co-worker that there had been a bomb threat. The building was immediately evacuated and the police called.

About fifteen minutes later the employee telephoned the store again and asked to speak with one of the workers at the front desk. He was told that everyone was outside because of a bomb threat. The employee then asked whether there was anyone else less gullible he could speak with. At this point the worker on the other end of the line asked the employee if he knew anything about the call, and the employee responded with a flippant admission that he had done it. The individual answering the telephone then told everyone they could come back into the store and that the employee had made the call as a prank.

The employee was discharged by the employer based on the above incident. The question to decide is whether the employee's discharge was for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee denied having made a bomb threat. He admitted to placing the call in question and to using a fake British accent, but insisted that what he said was, "Hello, may I speak with Erin, please?" The commission does not find the employee's testimony to be credible. The statements, "there is a bomb in your building," and "may I speak with Erin, please?" do not sound at all similar, and even considering the fake British accent, the commission finds it difficult to believe that Ms. Gamroth could have mistaken the two. Moreover, Ms. Gamroth asked the caller to repeat himself and confirmed that she had heard the statement correctly. At the hearing Ms. Gamroth testified that the voice on the telephone was very distinct and clear. Given all the circumstances, the commission concludes that the employee did, in fact, make the statement alleged.

While the employee may have intended the call as a harmless prank, he should have realized that the employer would take it seriously and that it would result in a major disruption in the workplace. Given all of the circumstances, the commission concludes that the employee's actions in making the threatening telephone call evinced such a wilful and substantial disregard for the employer's interests and the standards of conduct the employer had a right to expect of him as to amount to misconduct under the law.

The commission, therefore, finds that in week 28 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 in weeks 29 through 31 of 2002 in the total amount of $665, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he 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 28 of 2002 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. He is required to repay the sum of $665 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on July 11, 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.

Dated and mailed June 12, 2003
kujakja . urr : 164 : 1  MC 656

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that she found the employee to be credible and did not think the person answering the telephone was sure of what she had heard. However, for the reasons set forth in the body of the decision, the commission finds the employee not to be credible and concludes that he did, in fact, call in a bomb threat as a prank.
Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

cc: 
Attorney Bruce J. Kostner
Attorney John Brinckman SC


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