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


TODD A OECHSNER, Employe

MAYVILLE METAL PRODUCTS / DANLY DIE SET, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001907BD


On March 14, 2000, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on May 10, 2000 in Beaver Dam, Wisconsin before an department administrative law judge. On May 11, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer 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 worked approximately 13 years as a machine operator for the employer, a spring manufacturer. The employer discharged him on February 14, 2000 (week 8), for alleged unauthorized "surfing" on the Internet. The issue is whether that conduct by the employe is misconduct for unemployment insurance purposes. The commission concludes that it is, and so reverses the appeal tribunal decision.

The employer has in place a computer by each of the several machines in the employe's department. The employe's job duties include set-up of production runs and then, while the run is ongoing, occasional examination of product by computer analysis (with the computers by the machines). The computers were all connected to the employer's overall network, and that network included access to the Internet.

The employer's expectation was that production workers, including the employe, would use their computer terminals only for work-related purposes such as quality control. The computers by the work machines did not have icons, for example, for open, direct access to the Internet. In November of 1999, a co-worker discovered that the Internet could be reached through the Windows Start button, coupled with a search to find the Internet program.

Shortly thereafter, the employe began to access the Internet while his machine was running product, downloading images into the employer's computer system. Some of the images the employe downloaded were simply risqué. Some of the images were arguably pornographic, however. In addition, the employe had several "personal" ads of a sexual nature, in the employer's computer system. The employer discovered these accesses in early February of 2000, and then suspended the employe pending discharge. The employer subsequently discharged the employe for the rule violations it believed the employe's conduct entailed. These included falsification of time, misuse of company property, neglecting job duties and responsibilities, and performing personal business during working hours on company premises.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The commission believes the employe's conduct meets this standard. At a minimum, the employe's conduct constituted misuse of company property and the performance of personal business during working hours on company premises. It also arguably is neglect of job duties and responsibilities. This factor in itself does not weigh as heavily against the employe, because it was unrebutted that co-workers would read newspapers, books, and magazines while their machines were operating. There is a qualitative difference between such conduct, though, and that of the employe: using the employer's computer systems to surf tens of pornographic websites on the Internet.

The commission therefore finds that, in week 8 of 2000, the employe was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employe received unemployment insurance of $297.00 per week for each of weeks 9 through 14 of 2000, totaling $1,782.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f), it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 8 of 2000, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe must repay $1,782.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed August 4, 2000
oechsto.urr : 105 : 1  MC 655  MC 690

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/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. The crux of the administrative law judge's reasoning was that the employe had only accessed the sites in question after setting up and beginning operation of his machine, and that the employer had promulgated no rules prohibiting employes from accessing the Internet from their computers. With regard to Internet access, though, it was only by manipulation of the computer programs that the employe was able to gain Internet access. The employer had so set up the systems that employes would not have easy access to the Internet. Given this factor, the commission does not believe the employer had to have in place a work rule as well, prohibiting Internet access on the employer's computers. Finally, there is the subject matter of the employe's searches, as outlined above. For these reasons, the commission disagrees with the appeal tribunal's conclusion of no misconduct.

cc: 
CONNELL

WRAY VASSAR
CONTINENTAL INVESTIGATIONS & SEC


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