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

HAROLD C STARKS, Employee

BURNS INTERNATIONAL SECURITY SERVICES CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00609234MW

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 ten years, most recently as a shift supervisor, for the employer, a contract security agency. His last day of work was September 19, 2000 (week 39). He was discharged by the employer on September 22, 2000
(week 39).

The employee was discharged after receiving warnings for four separate incidents that occurred during his last six weeks of work. On August 8, 2000 (week 33), the employee was warned for physical contact with a female tenant of the property he was assigned to secure. The employee testified that he saw the tenant trying to push a cart up an incline and she could not get it going. He stated he got out of the truck, told her he would help her, then went behind her and pushed forward. The tenant did not say anything until they got in the building and then she told him he would be in trouble. The employer's general manager testified that the employee admitted he had come up behind the tenant while she had things in her hands and touched the back part of her body with the front part of his body. He said he was joking around and trying to be friendly. The employee indicated he should not have done this. He did not tell the general manager that he was only trying to assist the tenant in moving a cart up the hill.

The employee received a warning for swearing at a person who was violating parking restrictions on the property on September 8, 2000 (week 37). The employee testified that this individual directed profanity at the employee despite the fact that the employee was nice and professional about the matter. When the person starting raising his voice and hollering at the employee the employee did the same to the person. The employer presented no evidence to dispute the employee's version of the events.

The employee received a warning for making a comment concerning the lack of initiative of a receptionist in the tenant's building on September 13, 2000 (week 38). Out of earshot of the receptionist the employee said to another person that "It would be nice if she got off her butt and did her job."

The employee was discharged after he conceded removing the hinges of a door in a drum stored in the security office as a receptacle for guard messages on September 18, 2000 (week 39). The employee used a hammer and a small pin and took the pin out of the hinges and looked inside. He bent back the flange. The employee testified that he was attempting to retrieve access cards that he thought contractors may have put in the drum. He believed that the contractors might want those cards when they arrived later that day. The cards were issued by the client supervisor who was on vacation. There were also cards available to the employee that he could give to the contractors. The employee could have given the contractors those cards, but testified that the cards issued by the supervisor gave additional access. The employee asserted that he used to have a key to the drum, but the padlock was changed just prior to the supervisor's leaving for vacation. The employee asserted that the supervisor said he would get another key for the employee, however, he had not been given a key as of the day of the incident.

The purpose of the drum was to collect comments not to deposit access cards. Once the employee opened the drum he took everything out of it. There were no incident reports or access cards in the drum. The employee did not write an incident report to document his actions. The employer's general manager heard about the incident and went to investigate. The employee had taken some little slips of paper out of the drum and kept them. The employee gave the papers to the employer's general manager when the general manager questioned him. The employee did not tell the general manager that he had a key to the drum. The employee did not request permission from the client supervisor's supervisor or the employer's general manager before breaking into the drum.

The issue to be decided is whether the employee's actions, which led to his discharge by the employer, constitute misconduct connected with his work.

The employer contended that the employee's actions for which he was discharged amounted to misconduct for unemployment insurance purposes. The employer presented little in the way of first hand evidence to establish exactly what occurred between the employee and the female tenant, however the evidence presented demonstrated that the employee clearly used poor judgment in that instance.

The employee was agitated by a person who was parking in an unauthorized place. The person raised his voice toward the employee and used profane language. The employee responded in kind. However, the employee's job involved ensuring that persons did not enter areas to which they did not have access and did not park in unauthorized parking places. The employee's job involved dealing with the client's workers and with members of the public. The employee should have been more adept at handling situations such as that without resorting to swearing and shouting at the person.

The employer failed to demonstrate that the third incident, in which the employee commented about a worker of the tenant was anything more than an error in judgment.

However, the commission finds that the employee's intentionally breaking into the client's drum, under the circumstances presented in this case, demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work. The commission did not find credible the employee's assertion that he was merely looking for access cards. For one thing, he did not mention this reason to the manager when questioned about the incident. Access cards were not normally kept in the drum. The employee had access cards he could hand out. The employee had no reason for not calling his supervisor, or the client supervisor's supervisor to find out what he should do given the situation. The contractors were not at the client demanding access, so the employee did not have to make a snap decision. There should have been ample time for the employee to contact someone in authority to find out what to do should the access cards actually be in the drum when the contractors arrived. Instead, the employee broke into the client's locked drum and removed the material in the drum. The employee did not report the incident to the general manager or write out an incident report. Furthermore, he kept pieces of paper that were in the drum instead of returning them to the drum when he found the access cards were not in the drum. All of this suggests that he was not looking for access cards in the drum and that he was aware that he should not be breaking into the drum. Regardless of whether the employee had access to that barrel in the past, the client had changed the lock and had not provided a lock to the employee. The employee's actions in deliberately breaking into the client's drum demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week of 39 the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits of $238 in week 39 of 2000, $305 in week 40 of 2000 and $313.00 per week for each weeks 41 through 53 of 2000, and for weeks 1 through 11 of 2001, amounting to a total of $8,123.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 39 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. He is required to repay the sum of $8,123.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on September 22, 2000, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

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 employee 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 April 24, 2001.
starkha . urr : 145 : 3  MC 610.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He believed that there was a significant personality clash between the employee and his supervisor. The ALJ pointed out that this was a ten-year employee with no discipline, prior to July or August of 2000, when he started to have significant problems. The ALJ found the employee to be credible when he testified that the contractors were issued cards. The employee was also credible in his assertion that he needed these particular cards and the client supervisor was not there. The ALJ stated that there was some confusion as to what the employee was told about the drum, however, the employee's assertion that the client supervisor said he would give the employee a key was unrebutted and credible. However, the commission disagrees with the ALJ's credibility determination for the reasons stated in its decision.

Appealed to Circuit Court. Reversed January 29, 2002.   [Circuit Court decision summary]

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uploaded 2001/04/30