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

MARGARET A MATHEWS, Employe

BEST OIL COMPANY, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 95200401MD

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Industry, Labor and Human Relations 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 5 of 1995, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the enploye's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed November 21, 1995
mathema.usd : 198 : 3  MC 630.05  PC 715

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The employe's attorney raises nine major issues and several sub-issues in support of the employe's petition for commission review. The commission will attempt to address all of the issues.

The employe's attorney argues that no evidence exists in the record to support the appeal tribunal's findings that the employe withheld information from the employer regarding the status of her account, that she wrote bad checks and then placed them in the deposit bag, or that she intentionally delayed the deposit at the end of January, 1995, in order to protect and hide her bad checks. In addition, the employe's attorney contends that the employe simply forgot to make the deposit and that she had sufficient funds in her account to cover the checks.

The commission disagrees. The evidence shows that the employe, while she was co-manager of one of the employe's stores, wrote a total of eight NSF checks in the total amount of $415 to the employer's store during the time period December 12, 1994, to January 4, 1995. On January 20, 1995, the employe told her supervisor that she would take care of the NSF checks. On January 25, 1995, she was asked whether she had taken care of the NSF checks and she said she had. In fact, she had not taken care of them. Later, on January 27, 1995, the employe wrote two more checks in the amount of $60 and $75. These checks were placed in a deposit bag which the employe kept in the trunk of her car until she made a deposit on February 2, 1995. The employe contends that she had sufficient money in her account to cover these checks when she wrote them, but her account only had a balance in it of $5.83 on January 31, 1995.

Misconduct is defined as an intentional and substantial disregard of the employer's interests or of the standard of conduct that an employer has a right to expect from its employes. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941), Wehr Steel Co. v. ILHR Dept., 106 Wis.2d 111,116 (1982). The commission has no trouble concluding in this case, as did the appeal tribunal, that the employe's actions constituted misconduct. The employe, in her position as a manager, violated the trust placed in her by her employer by her misuse of the employer's funds. As such her actions evinced an intentional and substantial disregard of the employer's interests. She later compounded the problem by lying about whether she had redeemed the NSF checks and then wrote two more NSF checks and held up the deposit to conceal them. The commission concludes that these facts are supported by evidence in the record, without considering the employe's alleged coerced confession. Of course, the employe's remedy for being held against her will is an action against the employer for false imprisonment. Also, the status of the employe's worker's compensation claim has no bearing on the resolution of her claim for unemployment compensation benefits.

The employe's attorney further argues that it was a denial of equal protection and due process for the hearing to be held by telephone because the employe was denied the right to confront her accusers face-to-face. The commission finds no merit to this contention. An unemployment compensation hearing is an administrative proceeding, not a criminal hearing. The right to confront accusers face-to-face does not apply to administrative proceedings. The employer was presented with the same disadvantages of a telephone hearing as was the employe. In addition, the same rules of evidence do not apply in administrative proceedings. For example, under Wis. Admin. Code sec. ILHR 140.12(1), hearsay evidence is admissible if it is probative. A telephone hearing is a compromise proceeding designed to facilitate fast and efficient hearings where large distances exist between the residences of the witnesses. The telephone hearing did not deny the employe any of her constitutional rights. In addition, the employe's attorney probably waived the right to raise the constitutional issue by participating in the hearing and not raising the issue at the hearing.

Lastly, the employe's attorney maintains that the administrative law judge showed bias and should have recused himself because he remarked that minimizing unemployment payouts was good business for the employer. The commission also finds no merit in this contention. The administrative law judge, by making that remark, was only making a self-evident comment. It is a certainty that all employers would like to reduce costs by minimizing unemployment compensation payouts. The commission concludes that the administrative law judge did not show bias by making the remark and that the employe's constitutional rights were not violated.

cc: Attorney Peter J Nickitas

Attorney Thomas Andrew
Brown Andrew Signorelli & Zallar PA

Appealed to Circuit Court.  Affirmed August 29, 1996. [Summary of Court Decision].

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