DAVID A VERHOFF, Employee

MID VALLEY INDUSTRIES INC, Employer

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:

The employee worked for almost three years as an engineer and a project engineer for the employer, a custom fabricating machine shop. He was discharged on September 16, 2002 (week 38).

In mid-2001, the president became concerned about workers' use of the employer's phone lines for personal business. He audited the phone records for approximately four months. He learned that the employee and another co-worker had the highest number of personal calls. The president met with the entire staff in July of 2001, and told them about his concerns. The president also mentioned that the employer would be getting a dedicated service line for its computer, but that he did not want workers abusing the privilege of internet access, using company equipment on company time for personal matters.

The employer suspected that the employee was using the employer's equipment for personal matters and on company time, but did not confront the employee about such suspicions prior to his last day of work. The employee was never informed that his employment was in jeopardy. The only formal discipline the employee received was in March of 2002 for problems associated with the demonstration of a prototype machine. The employer had also raised concerns regarding the employee's productivity in March of 2002, and noted it had previously discussed the employee using company time and resources to conduct personal business, in response to the employee's request for a raise.

In late 2001 to mid-2002, the employee used the employer's computer and email system to send out resumes. On July 17, 2002, the employee signed the employer's employee manual, which indicated that the employer's communications systems should not be used for personal purposes except for short informational messages. The manual indicated that use of the employer's resources for personal communication could subject an employee to discipline, including discharge. The manual further provided for progressive discipline in an attempt to correct behavior before it reached a level requiring discharge.

After signing for the employee manual the employee did not send his resume out using the employer's systems. The employee did make limited use of the employer's email system after signing the manual when making inquiries regarding purchasing a vehicle, for setting a luncheon date, and for short correspondence with family and friends. The employee also received non-work related emails. The employer was not aware of these non-work related activities by the employee until after the separation from employment.

On September 13, 2002, the employer went to the employee's office to ask for his resignation. The employee was not in his office but the employer found 135 pages of bible study material the employee had printed out using the employer's equipment. The employer asked another worker where the employee was. The worker indicated the employee had left for the day. The worker further indicated that the worker's cousin had said that the employee was badmouthing the company. After hearing such comment the employer's president decided to discharge the employee. The president completed a discharge document indicating that the employee's work ethic had declined, he was coming and going as he pleased, and using the Internet for personal gain. The president indicated that such conduct, along with the fact that business was very slow, led to the decision to discharge the employee. The employee had left for the day and therefore the discharge decision was communicated to him on September 16, 2002. After the employee was discharged, the employer discovered evidence that the employee had used its equipment and resources for non-work related activities.

The issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer. 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 was clearly warranted in its suspicions that the employee was engaged in non-work related activity, particularly once it discovered the bible study material. The employer, however, was clearly seeking to end the employment relationship before the discovery that the employee had left the office early, and printed out the bible study material. Further, the employer's decision to discharge the employee was not prompted by finding the bible study material, but by hearsay reports that the employee had cast the employer in a bad light. In addition, the employee received no warning that his employment was in jeopardy because of his activities or suspected activities. Finally, the commission infers from the record that, if the employer's business had not been slow, the employee would not have been discharged for the conduct of which the employer was aware at the time of the separation.

The commission therefore finds that in week 38 of 2002, the employee was discharged by the employer but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 38 of 2002, if he is otherwise qualified.

Dated and mailed September 11, 2003
verhoda . urr : 132 : 1 :   MC 665.01  MC 665.08  MC 690

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ did not relay any specific demeanor impression she had of the witnesses that led to her decision. The ALJ indicated that she believed, based on the employee's testimony that the employer gave the employee an opportunity to explain himself, that he had an opportunity to talk his way out of the separation. However, the employee further testified that the employer indicated that if the employee had explained his activities the employer would have laid him off. Thus, accepting the employee's testimony as to the conversation occurring on September 16, the employer was going to end the employment relationship with or without an explanation. The commission finds that the hearsay report of the employee's comments about the employer, and the fact that the employer was experiencing a slowdown in business, were significant factors in the decision to discharge the employee. The commission has reversed the ALJ's decision based on the above factors and the lack of warning to the employee that his employment was in jeopardy.

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uploaded 2003/09/11