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


NANCY A MESSENGER, Employe

FORT JAMES OPERATING COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400520GB


On February 26, 1999, the Department of Workforce Development issued an initial determination which held that the employe's disciplinary suspension was for good cause, within the meaning of Wis. Stat. § 108.04 (6). The employe filed a timely request for hearing, and hearing was held on March 25, 1999 in Green Bay, Wisconsin before a department administrative law judge. On March 9, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe has worked as a night-shift office cleaner for the employer, a tissue converting and manufacturing business, for approximately 14 years. The employer suspended the employe's employment on February 15, 1999 (week 8), and the issue is whether employer had good cause within the meaning of Wis. Stat. § 108.04 (6) for the suspension. The commission concludes that it did not, and so reverses the appeal tribunal decision.

The employer asserted two bases for its suspension of the employe. First, the employer had become aware that the county district attorney had filed a criminal complaint against the employe on or about December 8, 1998, alleging that the employe had committed theft by fraud by falsifying a worker's compensation claim against the employer in 1995. The sole evidence of the employe's alleged worker's compensation fraud, though, is a copy of the criminal complaint. As a government record, the complaint is admissible evidence pursuant to the public records and reports exception to the hearsay prohibition, Wis. Stat. § 908.03 (8). The fact of the complaint itself, however, is not clear, satisfactory, and convincing evidence that the defendant committed the allegations in the complaint. (1) It is the evidence within the complaint which must ground the allegations against the employe. The evidence in the complaint is completely hearsay (statements from witnesses to the alleged fraud). When such hearsay occurs within even admissible reports, that hearsay also must meet one of the exceptions to the hearsay prohibition, in order to be admissible. See Boyer v. State, 91 Wis. 2d 647, 284 N.W.2d 30 (1979). Since Wis. Admin. Code § DWD 140.16 (1) prohibits deciding an issue solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats., there is no competent evidence in the hearing record to support the employer's assertion of worker's compensation fraud by the employe.

The employer's second reason for its suspension of the employe arose out of the employe's admission that she had illegally wiretapped her own telephone in order to determine whether her then-boyfriend was having an affair with a third individual. The employer wanted to protect itself from potential wiretapping against it by the employe. It considered the employe a threat, based upon her ability to wiretap telephones and the alleged worker's compensation fraud. This makes the employer's suspension of the employe a "pro-active" one, to protect it from potential harm by the employe.

The "disciplinary suspension" section of the statutes is as follows:

(6) DISCIPLINARY SUSPENSION. An employe whose work is suspended by an employing unit for good cause connected with the employe's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. The department shall, by rule, prescribe the condition under which an employe's possession, use or impairment due to use of a controlled substance as defined in s. 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m), or an employe's violation of a work rule relating to controlled substance testing constitutes good cause for suspension. This subsection does not preclude an employe from establishing a benefit year during a period in which the employe is ineligible to receive benefits under this subsection if the employe qualifies to establish a benefit year under s. 108.06 (2) (a).

Prior to 1987 Wisconsin Act 38, the language in the statute specifically referred to "disciplinary" suspension. At that time, and as is the case now, the title of the statutory section was "Disciplinary Suspensions." Act 38 left the title of the section as is, but repealed and recreated the statute itself, and the re-creation spoke only of "suspension" for misconduct or other good cause. Since the title of a statutory section is not part of the statutes, but rather is prepared by the Revisor of statutes for indexing purposes, the legal question is whether the legislature intended to broaden what constitutes good cause for a suspension under Wis. Stat. § 108.04 (6) when it rewrote that section via 1987 Act 38. For the following reasons, the commission concludes that it did not. (2)

First, a June 18, 1987 memorandum to the Joint Committee of Finance from the Legislative Fiscal Bureau's director, discusses the reasons for modification of the statute. The overriding purpose was to correlate various statutory provisions with the quarterly wage reporting system that the act was putting into place. There is no reference to a change in the scope of the disciplinary suspension statute. Second, the analysis by the Legislative Reference Bureau also does not suggest that a substantive change in the provision was intended. That bureau's summary states essentially that a current provision (pre-Act 38) suspends benefits where an employe is suspended from employment for misconduct or other good cause. This language, which purports to state the law before passage of Act 38, simply refers to suspension for misconduct or other good cause (the language of the Act itself). In other words, the summary does not distinguish between the presence of word "disciplinary" in the pre-Act statutory language and its absence in the post-Act language. The stated purpose of the modifications is to make the statutes compatible with the system for wage reporting and benefit calculations put into effect by the Act. Again, there is no mention of an intent to broaden the scope of the suspension provision. Third, other analysis in the legislative history of the Act likewise makes no reference to an intent to broaden the scope of the provision. A report in the legislative history, Proposed Benefit System Changes, discusses problems of determining benefits and charges; again, there is no reference to an intent to broaden the scope of the provision.

Finally, commission precedent after the statutory change suggest the same. In Voeltner v. Consolidated Freightways Corp. of Delaware, Hearing No. 91-400173 AP (LIRC 5-5-92), the commission stated that, while "other good cause" is a lower standard than misconduct, yet "some blameworthy conduct must be shown on the part of the employe." The commission also has held that suspensions for investigations, for example, do not fall within the purview of Wis. Stat. § 108.04 (6). See Brown v. Jewel Food Store, Hearing No. 98605057MW (LIRC 10- 20-98).

For all of the above reasons, the commission concludes that only disciplinary suspensions fall within the purview of Wis. Stat. § 108.04 (6). Since the employer's suspension was, by its own concession, a pro-active one, it was not a suspension within the meaning of Wis. Stat. § 108.04 (6). The commission therefore finds that, in week 8 of 1999, the employe's work was suspended by the employer, but not for good cause connected with the employe's work, within the meaning of Wis. Stat. § 108.04 (6).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance as of week 8 of 1999, if she is otherwise qualified.

Dated and mailed August 13, 1999
messena.urr : 105 : 3  MC 676 PC 714.03 PC 714.07

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge, however. Rather, the commission's reversal is based upon its legal conclusions that the evidence is insufficient to support a finding of good cause for the suspension, and that a "pro-active" suspension does not fall under Wis. Stat. § 108.04 (6).

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. First, the majority applies the middle standard of clear and convincing evidence for this suspension case. While it is true that we use a clear and convincing standard for discharge cases that involve criminal activity because of the stigma associated with those discharges, I do not believe that is true of suspensions. § 108.04 (6) says "An employe whose work is suspended by an employing unit for good cause connected with the employe's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first."

The employe does not need to be guilty of misconduct for a suspension to be disqualifying. The employe was charged in a complaint in Brown County filed by the District Attorney with fraud for falsifying a workers compensation claim against the employer in 1995. The employer interviewed the employe and her only response was "I am not guilty of workers compensation fraud." The employer was also concerned with the employe illegally recording conversations on her personal phone because she suspected that boyfriend was having an affair. The recording of phone messages was off duty but her position of office cleaner gave her the opportunity to do the same thing at work.

While the employer continued to investigate the workers compensation fraud case, the employer already had good cause to suspend the employe. Since § 108.04(6) is limited to a maximum of 3 weeks, the employer cannot investigate for extensive periods of time and still deny the employe benefits. If the employer had decided upon the further investigation that the employe was more credible than the four members of the Lace family, the employer could have lifted the suspension. At the time the employe was suspended the employer already was aware of the information in the criminal complaint. I believe that the employer had good cause connected with her employment to suspend the employe. For these reasons, I dissent.

__________________________________________
Pamela I. Anderson, Commissioner


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


Footnotes:

(1)( Back ) The dissent concedes that the clear and convincing standard of proof is appropriate for discharge cases involving criminal activity, but asserts that the same is not true of suspensions. The relevant inquiry is into the nature of the act alleged, however, and not whether the resulting separation was a discharge or a suspension. In Wisconsin, allegations of conduct which would be a violation of the criminal law must, in non-criminal settings, be proven by clear, satisfactory, and convincing evidence. See Kruse v. Horlamus Indus., 130 Wis. 2d 357, 363, 287 N.W.2d 64 (1986).

(2)( Back ) The dissent asserts that the employer's fears regarding future conduct by the employe, gave the employer good cause to suspend the employe's employment. The dissent cites no legal authority, however, for the proposition that the disciplinary suspension section of statutes reaches such suspensions.