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

SANDRA C POSS, Employee

OSHKOSH TRUCK CREDIT UNION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05400577OS


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 almost four years as a teller for the employer, a credit union. She was discharged on January 31, 2005 (week 6).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

On Friday, January 21, 2005, the employer's president learned that one of the employer's customers had loaned the employee a $1,700 Italian purse to take on her upcoming vacation, and had delivered the purse to the employee at the credit union that day. The president explained to the employee that it was a violation of the employer's code of ethics for the employee to accept the loan of the purse, and directed the employee to have the customer retrieve the purse before the end of the work day or, if this was not possible, to leave the purse in the credit union vault until Monday and have the customer pick it up at that time. The employee took the purse home with her after work that day but did not take it on vacation. When the employee telephoned the president upon her return from vacation, the president discharged her for violating her directive.

The customer who loaned the purse to the employee was her best friend.

The employer's code of ethics (exhibit #2) states as follows, as relevant here:

In the conduct of Credit Union business, transactions, and processes...Staff must avoid both the appearance and exercise of undue influence by virtue of their status...

1. Sample Precluded Action:...

d. ...[E]mployees may not violate sound business ethics or show or receive favoritism from any members, whatever the relationship....

2. Outside Parties

[Employees] shall avoid involvement in any Credit Union transactions and decision-making processes affecting any outside party with whom the [employee] has a direct or indirect material or personal interest or less-than-arm's-length relationship....

3. Other Precluded Activities

b. Acceptance of Gifts: An [employee] may not solicit, demand, accept or agree to accept directly or indirectly anything of value from any person in connection with any Credit Union related business activity or transaction....

4. Appropriate Exceptions to this Policy

This policy permits interaction with support agencies and individuals which constitute normal practices but not "Insider Dealings." Such activities which may be permitted include:...

e. Acceptance of gifts of reasonable value that are related to [a] commonly recognized even of occasion such as promotion, new job, wedding, retirement, holiday gifts, etc....

The employer's personnel policies states as follows, as relevant here:

E. Any employee may not directly or indirectly accept for themselves or another person any gift of money, goods, services or other arrangements for personal benefit. Exception is an inexpensive advertising novelty and acceptance of food and refreshments in conjunction with a business or educational meeting....

Gifts and Entertainment

No employee may directly or indirectly accept for themselves or another person any gift, other than inexpensive advertising novelty, from a person or firm that does business or seeks to do business with the credit union....

Generally, refusal to follow a reasonable employer directive is misconduct, but a single isolated incident of disobedience is not misconduct if the employee has a defensible reason for it. See, White v. ARA Cory Refreshment Services, UI Hearing No. 03600041MW (LIRC May 9, 2003); Jurasovich v. Van Ru Credit Corp., UI Hearing No. 03606070MW (LIRC March 12, 2004). Here, the employer directive was not a reasonable one, and the employee had defensible reasons for disregarding it.

The president's interpretation of the employer's code of ethics was overly broad. The provisions upon which she relied, which are reproduced above, relate by their terms to conduct of credit union business, transactions, and processes. Borrowing a purse from one's best friend, who has no relationship with the credit union other than as a customer, has too tangential a connection to the conduct of credit union business to reasonably be regarded as the type of activity the code of ethics was intended to address. The loan of the purse could not reasonably be interpreted as a ploy by the employee's best friend to obtain an advantage in a business dealing with the credit union. It was not comparable, for example, to the receipt of a valuable benefit from an entity or individual seeking to get favorable terms on a loan from the credit union, or to enter into a contract for goods or services. The employee did not receive the loan of the purse due to her position with the credit union, but instead due to her personal relationship with her best friend. This is not the type of activity the code of ethics by its terms was crafted to regulate. The president appeared, in addition, to conclude (see p. 3) that, because personal business was conducted by an employee with a customer on credit union property, somehow the credit union was now "involved in something it shouldn't be a party to." Again, this assumption was unreasonable and baseless. The president interjected herself into a personal matter, which was not converted, by dint of its occurrence on employer property or between an employee and a customer, into a credit union matter.

The president's directive was not a reasonable one, and the employee's violation of it, as a result, was not a deliberate violation or disregard of a standard of behavior the employer had a right to expect of her within the meaning of Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941).

The commission concludes that, in week 6 of 2005, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2005, if otherwise qualified.

Dated and mailed May 6, 2005
posssan . urr : 115 : 1   MC 687  MC 691

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 


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