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

SANDY LEWIS, Employee

OLDENBURG GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03610086MW


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 14 years as an assembler for a lighting fixture manufacturer. She was discharged on October 3, 2003 (week 40), for cheating on a skill test used to award pay increases.

On September 25, 2003, the employee along with several other workers took a blueprint reading test. Under the employer's skill grade pay system, workers that pass the test receive a 50 cent per hour pay increase. The employee did not pass the test.

On October 2, 2003, the employee was accused by a manager of cheating after he discovered that 14 of 20 answers on the employee's test matched the correct answers on a different version of the test that the employee did not take. Since some of the questions were identical, not every one of the 14 was wrong. However, when they were wrong, the answers were not even responsive to the question asked. From these non-sequiturs, the employer determined that the employee acquired the first version of the test and used it to complete her answers. When the employee was asked about cheating, she denied it. The employer discharged her for cheating on the skill test.

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 characterized the employee's conduct as both fraud and stealing. The commission does not consider the employee's conduct to be theft.  Had she been successful, she would have been awarded a pay increase. However, what she did was fraudulently misrepresent her knowledge of blueprints on her test with the hope of gain. Most cheating is done with the hope of securing a benefit or avoiding a harm.

Since the employee's conduct was not theft, the appropriate burden of proof is a preponderance of the evidence. The employer must establish by the greater weight of the evidence that the employee intentionally cheated on the skill test.

In this case, the probability that the employee would have answered the questions at random and consistent with the correct answers on a different test without cheating is extremely low. The only reasonable explanation for her answers is that she was copying them from a copy of the first version of the test. This dishonesty harmed the employer in several ways. If she had fraudulently passed the test, the employer would have believed that she was qualified to read blueprints in a future position. She also would have been awarded a pay increase she was not entitled to. The employee's conduct was in deliberate and substantial disregard of the employer's interests and amounts to misconduct connected with her employment.

The commission therefore finds that in week 40 of 2003, 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 41, 42, and 44 through 48 of 2003 and weeks 6 through 19 of 2004, amounting to a total of $6,294 (of which $658 is set forth on another decision) 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 40 of 2003, 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 $6,294.00 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700), issued on October 7, 2003, 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 May 28, 2004
lewissa . urr : 178 : 1 MC 630.01  MC 630.14  PC 714.03 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility with the ALJ prior to reversing. Since the employee committed fraud rather than theft, the commission finds misconduct based on a preponderance of the evidence in the hearing record. Therefore its reversal is as a matter of law.


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uploaded 2004/06/01