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

SHEILA M UELMEN, Employee

SCHNEIDER NATIONAL CARRIERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401016GB


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 trucking business, for about six and a half years as a recruiting coordinator. Her last day of work was February 5, 2003 (week 6).

The employee's job duties included supervising other workers in the collection and maintenance of certified job applications and other personnel records for the employer's truck drivers. The job application form for truck drivers contains information about the terms of employment agreed upon, and requests information from the applicant regarding prior accidents, traffic convictions, and criminal convictions. The form contains two separate signature lines for the applicant to provide authorization for the employer to obtain background information regarding the applicant's previous employment, educational background, criminal history, and prior drug and alcohol test results. A signed and dated signature is to appear at the bottom of the application form.

On February 4, 2003, the employee was assembling the personnel records and job application for one of the employer's new drivers. The documents had been faxed to the employee by another worker who obtained the information directly from the driver. Attached to the application was a "File Audit Form" which indicated that the application was non-compliant with regard to the signature and date. A handwritten notation on the "File Audit Form" stated, "It is signed upside down." The copy of the application which was faxed to the employee contained the driver's signature in two places authorizing the employer to obtain background information. However, it could not be determined from the faxed copy whether the driver had signed the bottom of the application, as no signature, upside down or otherwise, was included. The employee did not contact the worker who had obtained the application to seek clarification or to request a new fax of the driver's application form. Instead, she photocopied the driver's signature from another document and pasted it onto the application. She then made a photocopy of the application with the added signature and placed it in the driver's personnel file.

The following day the employer noticed that the signature appeared to be altered and asked the employee if she knew what had happened. The employee readily admitted that she was responsible for the alteration. She was discharged for falsification of a document.

The issue to be decided is whether the employee's discharge was due to misconduct connected with her 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 testified that she assumed a signed application existed, but believed the signature had been cut off of her faxed copy. The commission considers this assumption to be reasonable, particularly given the co-worker's note that the application was signed upside down. While better judgment would have dictated that the employee obtain a signed copy rather than cutting and pasting a signature from elsewhere in the file, she was attempting to act in furtherance of the employer's interests by completing the file in a timely manner. She had not considered the seriousness of her conduct and did not appreciate that the employer would regard it as falsification of documents. The employee had worked for the employer for six and a half years, and was never warned or talked to about similar conduct. Under all the circumstances, the commission views the employee's actions as an isolated instance of poor judgment in the course of an otherwise satisfactory employment relationship.

The commission, therefore, finds that in week 6 of 2003, the employee was discharged and not for misconduct connected with her employment, 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 6 of 2003, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed December 23, 2003
uelmesh . urr : 164 : 1  MC 630.09

David B. Falstad, Chairman

/s/ 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 he credited the employee's testimony that she believed there was a signed application, but found misconduct based on the seriousness of her conduct. The commission does not disagree with any credibility assessment made by the administrative law judge but, for the reasons set forth in the body of the decision, concludes that the employee's actions are best characterized as an isolated instance of poor judgment.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/12/29