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


THOMAS S ROLLO, Employee

BURNS INTERNATIONAL SECURITY SERVICES CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601084MW


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 years as a security supervisor and administrator for the employer, a contract security business. His last actual day of work was October 2, 1999, (week 40), when his employment was suspended due to an injury. He was discharged by the employer on December 14, 1999, (week 51), for refusing to submit a police report to the employer, for falsifying a police report and for failure to cooperate in an investigation.

On October 6, 1999 (week 41), the employee did not report to work, but called in sick. On that date, the employee was injured when he slipped his left arm into a home-made cutting device and the blade became disengaged and the employee was seriously injured.

In a later telephone conversation, the employee informed the employer's human resources manager that he had given the police misinformation about the incident, specifically he told the police he made the device himself when it was in fact made by a friend of his. The employer became concerned because as part of his job, the employee had to occasionally interact with the police. Therefore the employer requested a copy of the police report.

Thus, the employer's decision to investigate whether the employee lied to the police was reasonable, under the circumstances. In fact, the employee himself testified that lying to the police would make a guard suspect and that the employer had a legitimate need to investigate the allegation that the employee lied to the police. The employer has a policy that indicates a worker can be disciplined up to and including discharge for certain behavior, including the refusal to cooperate in a company investigation.

The employee sent the human resources manager a letter dated November 18, 1999 that indicates he would not furnish the reports, and should the police reports be obtained by other means it would be subject to litigation. The employee contended that the police reports were none of the employer's business. The human resources manager did not obtain the report herself because she believed the report had been "sealed" and she was concerned about the employee's threat to sue the employer.

The employer sent the employee a letter dated November 30, 1999 and informed the employee that it was alleged that the employee had informed a staff member that he had lied to the police department concerning the origin of the cutting device. The employer indicated as a result of concerns raised by this it wanted to review the police report within the next ten days. It informed the employee that the situation was serious and that the employer could not tolerate workers who were dishonest with either the police or the employer. The employee did not furnish the police reports.

The employee sent the employer a letter dated December 12, 1999 stating that the employee did not consider any discussion he had with the police department to be of concern to the employer. He informed the employer that he was working with an attorney and lawsuits were likely to result. He again stated that he would not furnish the police reports to the employer.

The issue before the commission is whether the employee's discharge was for misconduct connected with his work. The employer asserted that the employee's actions in failing to cooperate in an investigation by refusing to turn over the police report amounted to misconduct. The employer asserted it did not know, at the time of discharge, whether the employee had actually falsified a police report because it did not have that report in its possession. The commission agrees that the employee's actions in refusing to furnish the employer a copy of the police report amounted to misconduct connected with his work.

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 compensation 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 testified at the hearing that he refused to turn over the police reports, despite the fact that he was aware that he would be disciplined, and he also believed that the employer had a legitimate need to investigate an allegation of lying to the police. The employee indicated that he believed the police report might contain confidential information. However, he never obtained a copy of that report so that he could determine that for himself. Further, he testified that a nurse shared the police report with him. At the remand hearing he testified that he was mistaken when he said he had seen a copy of the report, the nurse simply told him what the report said. In addition, at the original hearing he said he did not want the employer to see certain information pertaining to a decedent. However, he testified also that the report contained medical information, and in his letter to the employer he indicated that he was refusing to turn over the report because, as there were no criminal acts, charges, or arrests, it was none of the employer's business. The employee told the human resources manager that he lied to the police. Further, the employee testified at the first hearing that he told the department representative that the employer asked him for the police report on one occasion, however, that the employer had actually asked him for the report on more than one occasion. The employee's testimony, in particular with regard to the police report, was inconsistent and unreliable.

Under the circumstances, the employer's decision to investigate whether the employee lied to the police was reasonable. In fact, the employee himself testified that lying to the police would make a guard suspect and that the employer had a legitimate need to investigate the allegation that the employee lied to the police. The employer has a policy that indicates a worker can be disciplined up to and including discharge for certain behavior, including the refusal to cooperate in a company investigation.

While the employee did mention that he had been hospitalized after the accident, there is no evidence in the record that would support a finding that his refusal to turn over the police report was caused by any medical condition. All the evidence in the record shows that the employee's refusal was the result of deliberate consideration on his part.

The employee's actions in wilfully refusing to furnish the employer with a copy of the police report demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 51 of 1999 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 51 of 1999 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. There is no overpayment as a result of this decision.

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.

The initial benefit computation issued on December 20, 1999 is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed October 3, 2000
rolloth.urr : 145 : 3 MC 618  MC 665.12  MC 692.02

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the original hearing. The ALJ did not have strong credibility impressions although he was not convinced that the employee was discharged as a result of his failure to turn over the reports. The ALJ also suspected the employee may not have had the report to turn over to the employer. However, the commission believes that the employee should either have explained this to the employer or attempted to get a copy of the report, rather than send the employer threatening letters. The commission did not find the employee credible for the reasons stated in its decision. In addition, the employer did not testify at the first hearing, but there was a considerable amount of testimony by the human resources manager at the second hearing. Further there was additional evidence that established that the employee was or should have been aware that his employment was in jeopardy if he refused to furnish the police report. The parties raised various objections at hearing with regard to the inclusion or exclusion of evidence. Neither party has renewed any objections after the hearing nor directed the commission's attention to any prejudicial error.

cc: ATTORNEY STACIE J ANDRITSCH
MICHAEL BEST & FRIEDRICH LLP

BURNS INTERNATIONAL SECURITY SERVICES

JEFFERY P VAN GROLL
ATTORNEY AT LAW


Appealed to Circuit Court.

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