BEFORE THE 
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

MICHELLE M HARDEN, Employee

SCHULTZ SAVO STORES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91607263RC


The Department of Industry, Labor and Human Relations issued an Initial Determination in the above-captioned matter finding that in week 34 of 1991 the employe was discharged for misconduct connected with his employment. The employe appealed and a hearing was held before an Appeal Tribunal. The Appeal Tribunal issued a decision on January 24, 1992, which affirmed that the employe was discharged for misconduct. The employe has filed a timely petition for Commission review pursuant to section 148.49 (6)(a) of the Statutes.

Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for over 20 years for the employer, a retail grocery chain. He was last employed in the produce department where he was working on August 20, 1991, his last day of work. He was notified of his discharge by the employer on August 23, 1991.

The employer discharged the employe for leaving the employer's premises on August 20, 1991 with a bag of loose grapes. The issue to be resolved by the Commission is whether the employe's actions amount to misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (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 employee, 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 employee'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."

On the employe's last day, he was required to remove grapes from a packing cart and display them in the produce section. When he was done, he removed the loose grapes from the bottom of the packing containers and placed them in a large clear plastic bag. He marked it "NC" to indicate there was no charge. As he was leaving the store at the end of his shift with the bag of grapes he was observed by a security agent. He was asked for a receipt which he could not produce. The security agent requested that he leave the grapes and wait for the manager. However, the employe left the store shortly before the end of his shift.

The employe stated that he had been removing loose grapes which he believed were to be discarded on a regular basis and was providing them to a shelter for battered women and children. Although the employer apparently had a policy of repackaging loose grapes and selling than to the public, the employe was not aware of this policy. He had not been instructed to package loose grapes during the months prior to his discharge in August, 1991. The employer also had a policy that all merchandise taken by employes must be purchased. However, the employe believed these grapes were to be discarded. He discussed with co-workers whether it would be okay for him to take the grapes when he believed that they would otherwise be discarded. While the employe may have exercised poor judgment in removing produce from the employer's premises without checking with an upper level supervisor or manager, the record demonstrates that he did not take those grapes with the intention of stealing than from the employer. He did not take them for personal gain but to give to charity. He did not conceal his conduct. He placed the grapes in a clear plastic bag and carried them in plain view when he left the employer's premises. Since the employer's policy with regard to grapes was sufficiently ambiguous for him to misunderstand the employer's actual intention of selling the grapes, the Commission must conclude that the employe's actions did not demonstrate an intentional, wilful or substantial disregard of the employer's interests.

The Commission therefore finds that in week 34 of 1991, the employe was discharged but not for misconduct connected with his work, within the meaning of section 108.04 (5) of the Statutes.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 34 of 1991, if he is otherwise qualified.

Dated and mailed October 15, 1992
178 : CD3803  MC 630.14

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The Commission did not consult with the Appeal Tribunal prior to reversing its decision because its decision does not rest on a differing preception of witness credibility. Instead, the Commission cannot conclude as a matter of law that the employe's conduct in this case evinced a wilful and substantial disregard of the employer's interest and therefore amounted to misconduct. As was noted in the body of the opinion, the employe neither concealed his conduct nor personally gained by it. Taking these facts into consideration with the overall circumstances during the employe's long employment history, the Commission must reach the result above.

cc: 
Attorney Marty R. Howard
Krukowski & Costello SC

Attorney Allen D. Krezminski
Schoone Ware Fortune & Lueck SC

Piggly Wiggly

 


Appealed to Circuit Court. Affirmed August 9, 1993.  [Circuit Court decision summary]  Appealed to the Court of Appeals.  Affirmed, unpublished per curiam decision, May 18, 1994.

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