Decision Number 1484-BH-92 - Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals

BOARD OF APPEALS

DECISION

Issue: Whether the claimant was discharged for gross misconduct, connected with the work, within the meaning of Section 8-1002 of the Labor and Employment Article.

- NOTICE OF RIGHT OF APPEAL TO COURT -

YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH THE LAWS OF MARYLAND. THE APPEAL MAYBE TAKEN IN PERSON OR THROUGH AN ATTORNEY IN THE CIRCUIT COURT OF BALTIMORE CITY, IF YOU RESIDE IN BALTIMORE CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.

THE PERIOD FOR FILING AN APPEAL EXPIRES September 26, 1992.

APPEARANCES

EVALUATION OF THE EVIDENCE

The Board of Appeals has considered all of the evidence presented, including the testimony offered at the hearings. The Board has also considered all of the documentary evidence introduced in this case, as well as the Department of Economic and Employment Development's documents in the appeal file.

The Board received a request for postponement of the hearing before the Board of Appeals, based on the claimant's assertion that she was in the process of obtaining legal counsel.

Counsel for the Board of Appeals denied this request, noting that the claimant had been on notice since March 25, 1992 that the Board would hold a hearing in this case. At the hearing itself, held on July 7, 1992, the claimant did not bring up this matter.

The claimant was discharged in this case for alleged conflict of interest, in that she allegedly used her position at the Baltimore Gas & Electric Company to gain a personal advantage for herself from one of B G & E's contractors.

The facts in this case show that the claimant performed an act which could have two possible interpretations. One interpretation is that she merely made an inquiry about a job to a contracting firm which also worked for her employer. The best point of her argument is that her actions, in and of themselves, are not the type of actions which can in every case be indicative of misconduct. In other words, in some circumstances, the actions which the claimant took might not be interpreted as placing undue pressure on a contractor. Based on all of the evidence in this case, however, the Board is convinced the claimant intended her actions to place undue pressure on the contractor and that she was aware, because of the contractor's position, and the nature of his personality, that this pressure would in fact result in a benefit for herself.

FINDINGS OF FACT

The claimant was employed with the Baltimore Gas & Electric Company in June of 1989. She was a secretary in the purchasing department. Occasionally, the department would make use of private messengers on a contractual basis. The department was not hiring and firing these contractors, but it was choosing who would perform these short-term contracts for the employer.

The claimant was a secretary. One of her functions was to contact a contractor from time to time and order messenger services from that contractor. Usually, the official that ordered the secretary to contact the messenger service did not specify any particular messenger service. In such a situation, the secretaries were allowed to call any contract messenger service that was on the official approved list. The claimant did this frequently.

The claimant often ordered such contractual messenger services from Day Delivery. Mr. Day, the owner of the company, was extremely anxious to curry favor with the Baltimore Gas & Electric Company so that these contracts, which eventually represented 1/6 of his total gross earnings, would continue.

The claimant was acquainted with Mr. Day and with one or two other persons in his business, but she had no substantial personal relationship with any of them. One day, the claimant left a note on Mr. Day's desk, stating that her daughter was looking for a job and recommending her as a good worker. Feeling that it was necessary in order to curry further favor with the Gas & Electric company, Mr. Day hired the claimant's daughter, though he was not impressed with her at the interview. She worked for about four months. The claimant later called and let it be known among Day Delivery Service's personnel that she would like a cake given to her daughter on her birthday.

The claimant was discharged by the employer because the employer felt that the claimant was using her position to exact personal favors from some of their contractors.

CONCLUSIONS OF LAW

The Board concludes that the claimant was discharged for gross misconduct within the meaning of Section 8-1002 of the Labor and Employment Article. The actual physical act done by the claimant, placing the note on Mr. Day's desk that her daughter would like to have a job, could possibly be interpreted as an innocent act. In the circumstances of this case, however, the Board concludes that it was not. Mr. Day was exceptionally susceptible to any pressure from the Baltimore Gas & Electric Company concerning his contracts, and the claimant had reason to know this. She had no substantial personal relationship with Mr. Day or anyone else in the company. Therefore, her actions cannot reasonably be interpreted as a mere request for personal favors from a person who was, in fact, her friend. The claimant is not a naive person, and her successful attempt to get her daughter a job was a deliberate attempt to manipulate Mr. Day by using her position with the Baltimore Gas & Electric Company to gain a concession from him.

Obtaining employment for her daughter was an obvious personal advantage for the claimant.

The claimant's deliberate misuse of her employment position in order to gain benefits from a contractor for herself is a deliberate violation of standards her employer has a right to expect, showing a gross indifference to the employer's interests. This is gross misconduct within the meaning of Section 8-1002 of the Labor and Employment Article.

DECISION

The claimant was discharged for gross misconduct, connected with the work, within the meaning of Section 8-1002 of the Labor and Employment Article. She is disqualified from receiving benefits from the week beginning November 3, 1991 and until she becomes reemployed, earns at least ten times her weekly benefit amount ($2,230.00) and thereafter becomes unemployed through no fault of her own.

The decision of the Hearing Examiner is reversed.

Thomas W. Keech, Chairman
Hazel A. Warnick, Associate Member
Donna P. Watts, Associate Member

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DATE OF HEARING: July 7, 1992
COPIES MAILED TO:

CLAIMANT
EMPLOYER
UNEMPLOYMENT INSURANCE - WESTMINSTER

LOWER APPEALS DECISION

DECISION

Issue: Whether the claimant was discharged for gross misconduct connected with the work within the meaning of MD Code, Labor and Employment Article, Title 8, Section 1002.

- NOTICE OF RIGHT TO FURTHER APPEAL -

ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A FURTHER APPEAL AND SUCH APPEAL MAY BE FILED IN ANY OFFICE OF THE DEPARTMENT OF ECONOMIC AND EMPLOYMENT DEVELOPMENT, OR WITH THE APPEALS DIVISON, ROOM 515, 1100 NORTH EUTAW STREET, BALTIMORE, MARYLAND 21201, EITHER IN PERSON OR BY MAIL.

THE PERIOD FOR FILING A FURTHER APPEAL EXPIRES AT MIDNIGHT ON January 21, 1992.

APPEARANCES

FINDINGS OF FACT

The claimant has a benefit year, effective November 3, 1991. Her weekly benefit amount is $223. The claimant was employed with the Baltimore Gas & Electric Company of Baltimore, Maryland on June 26, 1989. She was performing duties as a stenographer in the purchasing department at $558 per week at the time of her separation on November 6, 1991.

The supervisor, Michelle Hundt, heard rumors that the daughter of the claimant had been hired by Daye Delivery, which is one of the vendors of the employer. The supervisor then called the owner of Daye Delivery and asked if the daughter of the claimant was actually hired. He indicated he was not there but he received a note on his desk from the claimant indicating that she and her daughter were in the neighborhood and that her daughter was a very good worker and the claimant also left the telephone number where he could get in touch with the daughter.

Mr. Daye indicated that he did hire the daughter after rejecting her on the interview because of inappropriate clothes. He felt that he was intimidated by the claimant and that the only reason he hired her was so he would not lose any business with the Baltimore Gas & Electric Company. Mr. Daye indicated he did know the claimant was a secretary, but he did not know the full extent of her authority. He felt that if he did not hire the daughter, it would affect work that he was getting from the Baltimore Gas & Electric Company and if he went over her head to a supervisor, it could also have repercussions which would diminish the amount of work he got from Baltimore Gas & Electric. Instead, he simply hired the claimant's daughter and she is presently working for him even though the mother has been terminated from Baltimore Gas & Electric Company.

In addition, the claimant also called one of the dispatchers of Daye Delivery indicating that it was the claimant's daughter's birthday and thought that it would be a good gesture to send a birthday cake to the claimant's daughter. This is not normal with Daye Delivery; they do not deliver birthday cakes to people, but he did so again because of the claimant's employer Baltimore Gas & Electric Company.

In addition, it has also been determined that the claimant dated one of the dispatchers of Daye Delivery.

The claimant admitted that Daye Delivery was one of the friendlier vendors that they had in that Mr. Daye himself would supply flowers and fruit baskets when they called him. However, he indicated that this was simply a good business practice on keeping on the good side of BG&E.

The claimant did receive a manual when she first became employed which indicated, in part, that outside work must not be promoted by use of the company name or solicited as a result of work-related company contacts.

The claimant remained unemployed from November 6, 1991 until December 10, 1991, at which time she became employed with another company which she did not disclose at this hearing.

CONCLUSIONS OF LAW

The term "misconduct" as used in the Statute means a transgression of some established rule or policy of the employer, the commission of a forbidden act, dereliction from duty or a course of wrongful conduct committed by an employee within the scope of his employment relationship, during hours of employment or on the employer's premises within the meaning of the Maryland Code, Labor and Employment Article, Title 8, Section 1003. (See Rogers v. Radio Shack 271 Md. 126, 314 A.2d 113).

It is concluded from the testimony that the claimant may not have deliberately used her position with BG&E to get her daughter a job with Daye's Delivery but she certainly did not use the discretion that should have been part of her position and employment. It is, therefore, concluded that the claimant was discharged for misconduct and a disqualification under 1003, not Section 1002 of the MD Code, Labor and Employment Article, Title 8, is warranted.

The determination of the Claims Examiner will be reversed.

DECISION

The claimant was discharged for misconduct connected with the work within the meaning of MD Code, Labor and Employment Article, Title 8, Section 1003. She is disqualified from receiving benefits from the week beginning November 3, 1991 and nine weeks immediately following.

The determination of the Claims Examiner is reversed.

William R. Merriman, Hearing Examiner

Date of Hearing: 1/2/92
lc/Specialist ID: 15701

Copies Mailed on 1/6/92 to:
Claimant
Employer
Unemployment Insurance - Westminster (MABS)