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

BRUCE G SCHWARTZ, Employee

WELDALL MFG INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01601772WK


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 the employer, a manufacturer, for four and a half years as a material handler. His last day of work was October 24, 2000 (week 44).

On or about January 12, 1999, the employee was assigned to work outside by the employer, but did not have a jacket with him. The employee wore a jacket that he found in a locker in the employer's shop. When he finished with the job he returned the jacket to the locker. Later that day the employer asked the employee about the jacket, which belonged to another worker. The employee stated that he had worn the jacket and returned it. He indicated that he believed it had been left behind by a previous employee and that he did not think it belonged to anyone. The employee was given a three-day suspension for his conduct, which the employer described as an act of theft.

On or about October 23, 2000, the employee took a granola bar that belonged to a co-worker without obtaining permission to do so. When the co-worker discovered the granola bar missing he complained to the employer. On October 24 the employee was asked about the matter and admitted having taken a granola bar. He was then discharged for stealing.

The question to decide is whether the employee's discharge was for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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 employer alleged that the employee engaged in two acts of theft. The commission disagrees. In the first incident, which took place almost two years before the employee's discharge, the employee borrowed a jacket belonging to a coworker, returning it when he was finished. The employee was unaware anyone owned the jacket and believed it was abandoned. The second incident involved the employee's eating a granola bar belonging to a co-worker. The employee explained that he and the co-worker had shared food in the past and that, on a prior occasion, the co-worker had offered the employee his box of granola bars, telling him to help himself. The employee explained that, based on that conversation, he believed he had continuing permission to eat a granola bar. While the employee was remiss in failing to obtain specific permission before helping himself to his coworker's food, the commission is satisfied that the employee believed his co-worker would not object to his eating the granola bar and that he lacked the intent to steal. Given all the circumstances, the commission believes that the employee's actions exhibited poor judgment, but did not evince such a deliberate or substantial disregard for the employer's interests as to rise to the level of misconduct.

The commission, therefore, finds that in week 44 of 2000, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 44 of 2000, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed November 20, 2001
schwabr . urr : 164 : 1  MC 630.14

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


cc: Legal Action of Wisconsin, Inc.


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uploaded 2001/11/20