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

GREGORY YOUNG, Employee

HONDO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03604582MW


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 ineligible for benefits beginning in week 18 of 2003, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed November 7, 2003
younggr . usd : 115 : 1   MC 630.14    MC 630.16

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee was discharged for taking three cases of canned soft drinks. He admits taking the three cases but argues that these cans of product had been rejected, they were in the filler room awaiting disposal, and it shouldn't be considered theft when a worker takes product which is going to be thrown away.

Although the employer did not have a specific work rule relating to the status of rejected product, its workers were familiar with the employer's practice for disposing of it, and were aware that such practice involved discarding, not sale or donation or consumption. The employer did have a work rule prohibiting theft.

Theft from an employer is one of those actions which, under most circumstances, justifies discharge without warning or notice that an employee's job is in jeopardy. Here, the employee took three cases of soft drinks valued at about $12.  In Trinh v. Metcalfe Madison, UI Hearing No. 02007289MD (LIRC July 8, 2003), the commission concluded that, although theft of product of de minimis value may not support a conclusion of misconduct under certain circumstances, intentional theft of property of significant value is clearly misconduct.  In Trinh, the value of the property taken was less than $2. Here, considering both its quantity and value, the commission concludes that the de minimis level was exceeded.  In addition, the employer had established procedures for disposing of rejected product, and its workers had reason to be familiar with these procedures, which at no time provided for employees taking it for their personal use. (See, Lueck v. LIRC and A.O. Smith Corp., Case No. 84-1199 (Ct. App. 1985, unpublished) (employee's theft of scrap metal misconduct even though product intended for disposal, not sale)); Meverden v. Kolbe & Kolbe Millwork Co., Inc. UI Hearing No. 88-402181WU (LIRC July 7, 1989). Finally, the employee did not ask for permission or clarify with management whether taking rejected product was permitted.

The commission concludes on these bases that the employer sustained its burden to prove misconduct.


cc: Coca Cola Enterprises


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uploaded 2003/11/10