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

JEANNIE M MCCARVILLE, Employee

WALNUT HOLLOW FARM INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003617MD


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 about three and one-third years as an assistant product manager for the employer, a manufacturer of woodcraft products and tools. She was discharged on July 13, 2007 (week 28).

The 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 employer had telephone and Internet policies, of which the employee was aware, that employer's telephones and electronic mail were to be used only for company business. The employer determined that during the period from November 28, 2006 to June 14, 2007, the employee had talked on the telephone with her father about personal matters a total of 554.56 minutes or nine hours and 24 minutes. The employee's father would telephone the employee using the company's 800 number and then the two of them would talk. The conversations could last for as little as 30 seconds or as long as 41 minutes. A computer report showing the employee's electronic email usage during the period from April 12, 2007, through July 13, 2007, shows that the great majority of the employee's emails were sent for personal reasons. She was discharged on July 13, 2007, for violating the above policies and stealing time from the employer.

The employee argued that her discharge was not for misconduct. The commission agrees.

The employee was never warned that the employer considered her personal use of email or telephone resources to be a problem. Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who has been discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941). In addition, the commission has consistently held that except for the most serious offenses, the employer has an obligation to warn a worker that his or her performance is not satisfactory and give him or her an opportunity to improve before a finding of misconduct can be made. Marcolini v. Alma Public School, UI Dec. Hearing No. 7820774EX (LIRC May 29, 1979). The employee used the telephone for about nine and one half hours over a six and a half month period, so she was using the phone less than two hours per month. The employee was sending out personal emails as well, but there was no allegation that the employee was using the employer resources for any inappropriate purpose, for example, to send pornographic or threatening messages. While the employee's actions demonstrated poor judgment, they did not amount to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 28 of 2007, the employer discharged the employee, but that her discharge was not for misconduct connected with her work, 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 28 of 2007, if otherwise qualified.

Dated and mailed March 7, 2008
mccarje . urr : 145 : 1    MC 655  MC 690

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse the ALJ based on a different impression of witness credibility or demeanor. Rather, the commission reverses his decision as a matter of law.

cc:
Attorney Todd M. Pfeil
Attorney Daniel J. Finerty


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


uploaded 2008/03/17