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

JENNIFER C KREUZPAINTNER, Employee

MENARDS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03605888MW


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 almost five years as a cashier for the employer, a retail hardware business. Her last day of work was June 5, 2003 (week 23), and she was discharged on June 6, 2003.

The issue is whether the employee's discharge was for misconduct connected with her employment.

It was the employer's practice to provide a "sorry slip" to a customer when a sale item was out of stock during the sale period. The customer could then present the sorry slip when purchasing the item when it was back in stock in order to obtain the sale price even if the sale period had expired.

Ending June 1, 2003, certain of the employer's $3.94 disposable cameras had been on sale for $2.77.

On June 5, 2003, one of the employee's co-workers presented five of these disposable cameras to the employee for purchase. The co-worker stated that she thought she had a sorry slip for the cameras but could not locate it. The co-worker indicated that she wanted to purchase the cameras at the $2.77 sale price.

The employee processed the sale of the cameras at the sale price.

The employee should have been aware that neither she nor the co-worker was authorized to effect the sale of the cameras at the expired sale price, in the absence of a sorry slip, without obtaining management approval.

The employer terminated the employee on June 6, 2003, for selling the cameras at an expired sale price in the absence of a sorry slip or management approval.

The employer's handbook states that selling or buying company merchandise or services at other than authorized prices "can result in various forms of disciplinary action including suspension and termination."

The employer had previously disciplined workers for actions similar to the employee's which are at issue here.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). Here, the employer failed to show that the employee would have been aware, through its handbook, the practice it had followed with other employees, its interactions with the employee, or otherwise, that failing to obtain management approval for the transaction at issue here would result in her immediate termination.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that her job would be in jeopardy if she engaged in it. Although the employee was careless in processing the transaction in this manner and relying on the customer's status as a co-worker to give her the benefit of the doubt as to the existence of a sorry slip, the commission concludes it was an isolated instance of unsatisfactory conduct which was not sufficiently egregious to rise to the level of misconduct in the absence of prior warning. See, e.g., Ellingson v. Structure, Inc., UI Hearing No. 99200907EC (LIRC Nov. 3, 1999)(single instance of employee ringing up own discounted purchase without management authorization isolated instance of unsatisfactory conduct not sufficiently egregious to rise to level of misconduct).

The commission concludes that, in week 23 of 2003, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2003, if otherwise qualified.

Dated and mailed March 16, 2004
kreuzje . urr : 115 : 1   MC 691

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did confer with the administrative law judge before reversing his decision. The commission agrees with the administrative law judge's material credibility determinations. However, it reverses his decision based upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Menard, Inc. (West Allis, Wisconsin)


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