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

JOSEPH M CIRA, Employee

CRABEL CAPITAL MANAGEMENT LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04609353MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2004, 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.

Dated and mailed July 8, 2005
cirajos . usd : 135 : 1  MC 675  MC 687

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee raises many issues and concerns in his petition and brief regarding the merits of his appeal. In particular, the employee argues that the employer did not have permission to contact the trading firm where he had his personal trading account. The commission however does not need to address the issue of how the employer obtained the information since the employee admitted to the July 23 transaction. Therefore, the issue is whether the employee's actions that took place while at work involving his personal employee trade account violated the employer's policy prohibiting personal trading during the employee's normal working hours or from within the company's offices even outside the normal working hours and; if so, whether this violation constituted misconduct within the meaning of Wis. Stat. § 108.04(5).

The employee argues that what he did during his normal working hours on July 23 was merely adjust the trade that he entered the night before from his home after work hours. The employee argues that there is a distinction between an adjustment, an order or a trade. However, the commission is not persuaded that there is any distinction between orders, adjustments or trades, including canceling a trade, as those terms are interchangeably used in the commodity trading business. The employer's witness, its chief operating officer, testified that when she spoke to the employee about the July 23 transaction using the term "trade," he did not object to that term. Furthermore, this witness testified that these terms including "order and trade are used as synonyms." See Synopsis page 3.

The employee's arguments also discount the employer's broad prohibition of inside trading during normal work hours or from the company's offices outside normal work hours. The employee signed an acknowledgement that he had read and understood the company policy statement on personal trading and that any violation of the policy could lead to sanctions, including dismissal and prosecution for any damages or breach of law or regulation.

The purpose of the company prohibition relates to the employer's role as a fiduciary to its customers. Additionally, there can be no appearance that the employer's employees engaged in activities that appear to have been based on inside trading information. Consequently, the employee violated the employer's policy on July 23 when he "adjusted" a trade involving his personal employee trade account during work hours.

The commission considered whether the employee's conduct could be characterized as an isolated instance of poor judgment but as the ALJ held, such a characterization would detract from the seriousness of the conduct as well as the importance of the employee's fiduciary duty. Under the facts found, the employee's actions constituted an intentional and substantial disregard of the employer's interests and of the standards of conduct the employer had a right to expect of the employee, thereby establishing misconduct within the meaning of Wis. Stat. § 108.04(5).

cc:
Robert C. Tibbits
Attorney Steven F. Stanaszak



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