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

LAURIE L LONGHURST, Employee

US POSTAL SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12600078MW


On December 28, 2011, the Department of Workforce Development issued an initial determination which held that the employee had been discharged for misconduct connected with her work. The employee timely requested a hearing on the adverse determination, and that hearing was held on February 1, 2012. On February 8, 2012, a department administrative law judge issued an appeal tribunal decision affirming the initial determination of misconduct. The employee timely petitioned the commission for review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the record in the case, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The employee worked just over 20 years, most recently as a rural postal carrier, for the employer. The employer discharged the employee on November 18, 2011 (week 47), because it believed the employee had intentionally inflated the number of pieces of mail she handled during a time study the employer recently had performed. The issue is whether the employer's discharge of the employee was for misconduct within the meaning of Wis. Stat. § 108.04(5). The commission concludes that it was not, and so reverses the appeal tribunal decision.

Every year or two the employer conducts time studies of its employees in order to account for everything they do in a work day. Included in these studies is the number of pieces of mail the carriers handle in the course of their duties. On September 29, 2011, upon the employee's return from her route, a supervisor at the employee's facility counted her mail and discovered that she had included in her route mail 4 pieces of personal mail. The employer considered the employee's inclusion of personal mail in her route mail to be intentional inflation of her count, and thus a violation of the employer's prohibition against knowingly submitting false information to the Postal Service. The employer instituted disciplinary proceedings against the employee, which culminated in its discharge of her on her last day of work, November 18, 2011.

Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), is the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States. There the Wisconsin Supreme Court stated, in relevant part:

. . . 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.

Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60. In other words, misconduct is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's conduct in the present case meets neither of these criteria.

The employee has had problems with her personal mail. It has been stolen from the mailbox at her rural residence and on one occasion the mailbox itself was stolen. For these reasons, a few years ago the employee began the practice of bringing her mail with her to work and throwing it in her route mail bin. The only time this practice is objectionable to the employer is during its time studies. The employee put the 4 letters in her bin out of habit, however, and did not do so with the intent to inflate her mail count.

The employee's failure also was not a substantial disregard of the employer's interests. The Route Evaluation Worksheet for the employee for the September 2011 time study shows an average office time allowance for random letters of 0.0555 minutes. For the 4 letters in question, that comes to a mere 13.3 seconds out of the 28,800 seconds in an 8-hour work day.

The commission therefore finds that, in week 47 of 2011, the employee was discharged but not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION


The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2011, if she is otherwise qualified.

Dated and mailed May 23, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: As noted above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge noted that the employee knew the time study was coming, and that she seemed to "ramble" when testifying about problems she had had with the mailbox at her residence. That the employee testified extensively about problems she had had with vandalism of her mailbox, though, does not negate the inference that it is those problems that underlie the employee's practice of placing her personal mail in her route bin. Nor does it suggest the inference that the employee intentionally did so in order to inflate her mail count.


longhla . urr : 105 : MC630 . 09

cc: US Postal Service (Milwaukee, WI)

 


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