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

ELLEN C CORNILS, Employee

ULTRA MART FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02402775AP


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 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 employee is eligible for benefits beginning in week 25 of 2002, if otherwise qualified.

Dated and mailed March 11, 2003
corniel . usd : 115 : aty  MC 697

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

MEMORANDUM OPINION

Although the commission understands the importance to the employment relationship of trust and honesty in the time-keeping and time-recording process, it concludes that the employer failed to establish misconduct here. The employer did not successfully rebut the employee's testimony that the store was going under (in fact, the store closed a week and a half after the employee was terminated), that the department managers had been told that avoiding overtime and other cost- cutting efforts could save the store, and that enforcement of store policies had been lax. The employer, which has the burden of proof, did not establish that the employee had not actually worked the previous hours she was making up in the succeeding week. Moreover, the employee had worked for this store for almost 20 years and the record does not show that she had any prior discipline or performance problems, or that she had received a warning for this type of conduct. In addition, the commission finds credible, as did the ALJ, the employee's representation "that she was attempting to take time off that she thought she was owed by the employer when she previously worked 'off the clock' "; and her representation that she "feared the store would close due to financial problems and she did not want to add the additional cost of overtime to the employer." Finally, the commission, in Ostrowski v. Royalton Manor, Case No. 012012013EC (LIRC December 21, 2001), addressed a somewhat similar question and concluded that misconduct by time theft had not been demonstrated in a case where a long- term employee had arrived early for work, not clocked in for these early hours, and had run a short personal errand later in the day without clocking out. The commission stated as follows in relevant part in reaching that decision:

While the employer may have had valid concerns that the employee was stealing time, in this instance the employee could legitimately have believed that she was not stealing time because she had come in early and worked without punching in to ensure that bread delivery could be made. The employee's actions may have demonstrated poor judgment, however, the commission does not, in view of her 23 years of employment with the employer, and lack of prior warnings, find that the employee's actions amounted to misconduct. While the employer may have made a valid business decision when it decided to discharge her, the employee's actions amounted to an isolated instance of poor judgment and did not rise to the level of misconduct connected with her work

The commission would apply the same rationale here in concluding that the employer failed to prove that the employee engaged in misconduct.


cc: Wray Vassar, Continental Consultants

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uploaded 2003/03/31