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


DAVID J MORTLE, Employe

PICK N SAVE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96604835MW


On June 27, 1996, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 23 of 1996 the employe was discharged, but not for misconduct connected with his employment. As a result, benefits were allowed. The employer filed a timely appeal and a hearing was held before an appeal tribunal. On October 29, 1996, the appeal tribunal issued a decision which reversed the initial determination and found that the employe's discharge was for misconduct. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

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 the employer, a grocery store, for many years, most recently as a journeyman meat cutter. His last day of work was May 14, 1996 (week 20) and he was discharged on June 3, 1996 (week 23).

Pursuant to state law, the weight of the container in which meat is sold (referred to as the "tare" weight) must be subtracted from the total weight of the package so that the true weight of the meat is reflected on the label that is presented to the customer.

On or about October 31, 1995, the employer received a warning letter from the Wisconsin Department of Agriculture Trade and Consumer Protection (hereinafter "DATCP") for tare weight violations. Thereafter the employer agreed to review proper tare procedures with its employes and to have them sign a training document, to audit all scaled items, and to implement a routine auditing system to verify accuracy.

On May 3, 1996, the employe was working in the meat department trimming T-bone steaks. Two other journeymen meat cutters were cutting the meat, and an apprentice, Jason Quinlan, was weighing and wrapping it. The meat department manager, who was responsible for the operation of the department, was in the store on the day in question but was away from the meat cutting area.

The meat sold in the employer's store is weighed on a Hobart machine, which is pre-programmed to include the correct tare weight for each type of product. The proper setting for T-bone steaks was 3 tare. At approximately 1:30 p.m., after he had been weighing and wrapping meat for more than an hour, Mr. Quinlan announced that something was wrong with the Hobart machine and that the weight was set for zero tare. The employe indicated that the machine ought to be set at 6 tare, and Mr. Quinlan reset it accordingly. The employe took no action to determine what, if anything, Mr. Quinlan had done about the meat that was misweighed before Mr. Quinlan realized and corrected the error. The employe's shift ended at 2:00 p.m. and he left for the day.

Although Mr. Quinlan had been issued a previous write-up for using the wrong tare weight and was advised that if he did not know which tare to use he should ask his supervisor, he neither brought the incident to the attention of the meat department manager nor took any steps to resolve the problem. The meat was not relabeled and some or all of the misweighed meat was ultimately placed in the butcher case for sale to the public.

Later that day the Consumer Protection Regional Office for DATCP received a complaint about an alleged violation of the law occurring at the employer's premises. After conducting an investigation, DATCP determined that 60 T-bone steaks which weighed less than the weight represented on their packaging had been put out for sale to the public. (1) The DATCP investigator noted that, in spite of the prior citation, none of the meat department employes on duty had been able to identify any training forms, the employer was unable to produce such forms, and the meat manager had no knowledge of any training program. The investigator further noted that there was no security method in place to prevent someone from changing the pre-programmed tare values in the scale and no process of supervisory oversight or quality assurance to prevent employes from running product with incorrect tare weights. The employer's violation of the law ultimately resulted in a $14,000 fine.

On May 14, 1996, the employe was suspended pending further investigation of the incident. On June 3, 1996 (week 23), the employer notified the employe by letter that he was discharged. The letter indicated that the employer had determined the employe was aware product was run with the wrong tare weight, but failed to report this to a manager or supervisor and, thereby, placed the employer in violation of the law. The employer further indicated that it suffered financial damage as a result of the employe's actions and that his conduct constituted a breach of the employer's work rules and policies, as well as a lack of loyalty to the business interests of the employer.

The issue to resolve is whether the employe was discharged 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 appeal tribunal found that the employe's failure to notify the employer about the mislabeled meat amounted to misconduct. In arriving at this conclusion, the appeal tribunal reasoned that the employe knew Mr. Quinlan was not deducting the weight of the packages and that an employe who witnesses a violation of the law which could subject his employer to liability clearly owes a duty to at least inform his employer of that fact. However, the commission knows of no rule stating that an employe always has a duty to inform the employer of any and all potential violations of the law, and believes that the question of whether the employe has such a duty must depend upon the particular circumstances of each case. The commission concludes that the employe did not have such a duty in this case and, further, that he was not shown to have engaged in wilful misconduct.

The employer contended in its discharge letter that the employe violated its rules and policies. However, the employer failed to identify any rule or policy which required the employe to either remedy his co-worker's error or to report the incident to management. While the employer asserted that the journeymen meat cutters were responsible for accounting for the tare weight, the record does not establish that employes who were not assigned to weigh or package the meat were nonetheless responsible for accounting for its weight and, presuming it was the employer's expectation that they do so, there is nothing to indicate that such expectation had ever been communicated to the employe. In addition, given that Mr. Quinlan specifically testified that it was his responsibility to report the error to management, and that he neither did so nor sought assistance from his co-workers in addressing the problem, the commission finds it difficult to conclude that the responsibility for the misweighed meat lies with the employe.

The employer points out that the employe had once been the manager of the meat department, and maintains that the employe would usually fill in when the manager was absent. However, the employe was not a manager when this incident occurred, and there is nothing in the record to establish that his job duties as a journeyman meat cutter included supervision of apprentice employes. It is clear that Mr. Quinlan did not regard the employe as a supervisor and, in light of the fact that the meat department manager was on duty that day, there is simply no reason to believe that the employe was expected to perform any management functions.

Even if the commission were to conclude that the employe did have a duty to report violations of the law to the employer, including those stemming from the actions of co-workers over whom he had no supervisory responsibility, the evidence did not establish that the employe was aware such a violation was occurring. It is not the accidental mislabeling of products that places the employer in violation of the law, but the intentional offering of those mislabeled products to the public for sale. (2) Although the evidence established that the employe knew the meat had been misweighed, it was not demonstrated that he was aware the misweighed meat would be put out in the display case. Given Mr. Quinlan's announcement that the scale was incorrectly set and that he was changing the tare to something more appropriate, indicating both that he was aware of the problem and that he knew how to correct it, there was no reason for the employe to assume that Mr. Quinlan was not going to remedy the situation and that the employer would be exposed to liability.

The commission considers it important to note that the citation by DATCP and attendant forfeiture resulted as much from the employer's own negligence as from any action or inaction on the part of the workers. Although the employer had agreed to audit its weighing procedures and to provide new training for staff members, it did neither of these things, then compounded the situation by failing to have proper supervision available in the meat department. Had the employer taken the reasonable steps previously agreed to in order to prevent further tare violations, it seems likely that the incident would not have occurred.

While it could be argued that a more diligent employe would have taken some action in this instance to ensure that his employer's interests were protected, the fact remains that the employe neither created the condition that allowed the problem to occur, nor had any direct participation in misweighing the meat or putting the misweighed meat out in the display case. What is more, the record did not establish that the employe had any reason to believe his co-worker would not take appropriate steps to remedy the error before the meat was put out for sale. Under the circumstances, the commission does not believe the employe is responsible for the adverse outcome or that his failure to take affirmative steps to prevent it can be characterized as misconduct, within the meaning of the statute.

The commission, therefore, finds that in week 23 of 1996 the employe 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 employe is eligible for benefits, if he is otherwise qualified. The employe is not required to repay the sum of $5,206 to the Unemployment Reserve Fund.

Dated and mailed  April 8, 1998
mortlda.urr : 164 : 1  MC 660.01 MC 687

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not consult with the administrative law judge regarding witness credibility. The commission's reversal of the appeal tribunal decision is not based upon a differing assessment of the credibility of witnesses, but is as a matter of law. To the extent the commission has expanded upon the appeal tribunal's findings of fact, these factual findings are based upon evidence which is largely undisputed and do not depend upon credibility impressions.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe should have told his supervisor about the misweighed meat.

The employe was a journeyman meat cutter and had managed the meat department at one time. The employe suggested that the co-worker change the tare weight from 0 to 6. That was incorrect and the employe should have known what the package weighed. There were not that many packages and the employe had lots of experience. The employe knew how to change the tare weigh on the scale and he also knew that the meat that was being cut was to be used that day. He was well aware of the harm to the employer of putting packages of meat that weighed less than they were labeled out for sale to the public. For these reasons, I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner

cc:
ATTORNEY LAURIE PETERSON
LINDNER & MARSACK

GREG LEIFER
UFCW LOCAL 1444


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Footnotes:

(1)( Back ) Although the employe's suggestion that the steaks should be weighed at 6 tare was erroneous, this error resulted in meat which weighed more than what was represented on the package, and was in the consumer's favor. While such an error was not to the employer's advantage, it presumably resulted in no liability to it.

(2)( Back ) A person may not intentionally "represent in any manner a false quantity or price in connection with the purchase or sale, or any advertising thereof, of any commodity, thing or service." Wis. Stat. § 98.26(1)(c).