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

BARBARA M HORZEWSKI, Employee

SPEEDWAY SUPERAMERICA LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601603MW


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 chain of service stations and convenience stores, for almost three years, most recently as an assistant manager. Her last day of work was January 31, 2007 (week 5), when she was discharged.

The employer had a policy prohibiting workers from accepting phone orders for the wire transfer of money or money orders, or the payment of credit card debts. On the day before the employee's last day of work, the employee signed a statement admitting that she had caused over $1,900.00 to be transferred into accounts for the payment of a credit card debt by phone. She had done so pursuant to a telephone conversation she had with an individual purporting to be a representative of the employer's home office. The employee did the transactions because the individual on the phone identified himself as someone who worked in the corporate office in Enon, Ohio. The individual told the employee that there had been a customer complaint that a customer service representative in the employee's store had credited two transactions to the wrong credit card account. The individual described someone who fit the description of a worker at the employee's work location. The individual also gave the employee a toll free number and at one point she called that individual back at that number. The individual was able to tell the employee what prompts she had to follow to complete the transactions and what the confirmation numbers were for the transactions.

The employee conceded that she was aware of the rule prohibiting telephone orders for the services. The employer's policy further provided that money transfers could not exceed $1,900.00 per customer in a 24-hour day. However, the employee believed the limit was $2,500.00. The employee did not consult with any managers before or after the conversation herein. Her actions subjected the employer to a monetary loss in excess of $1,900.00.

The initial issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

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 insurance 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' within the meaning of the statute."

The employee reasonably believed that she was speaking to someone at the employer's corporate office. The employee did not consider that she was making a telephone transaction in violation of the employer's policy. Rather, the employee reasonably believed that she was furthering the employer's interests by addressing and helping to resolve what she was led to believe was a customer complaint. The commission finds that a reasonable person in the employee's position could conclude that the employee was not acting with intentional disregard for the employer's interests.

The commission therefore finds that the employer discharged the employee in week 5 of 2007, but not for misconduct connected with her work for the employer 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 5 of 2007, if she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed June 22, 2007
horzeba . urr : 132 : 1 : MC 691

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that the employee was forthright and credible as to what occurred. The ALJ also indicated that he believed the employee had the employer's best interest at heart. The ALJ indicated that his decision was based on his belief that the employee was on clear notice, in particular by virtue of the employer's postings on the matter, that such transactions could not be done by telephone. For reasons set forth in its decision, the commission disagrees with the ALJ's conclusion that the employee's actions rose to the level of misconduct.

cc: Attorney Steven G. Kmiec


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uploaded 2007/06/25