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

LAURIE A ROSSIER, Employee

THE COPPS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04001067WR


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 about 11 years, about the last three years as a liquor department lead worker/clerk/cashier for the employer, a grocery store chain. Her last day of work was January 12, 2004, when the employer suspended her employment. On January 23, 2004 (week 4) the employer terminated the employee's employment.

The issue to be decided is whether the employee's actions, which led to her discharge by the employer, constitute misconduct connected with her work.

The employer's standards of conduct generally state that theft and dishonesty can result in discharge. The employer also has a code of ethics that provides that premiums from vendors can only be accepted on work premises and with prior approval of the assistant store manager or store manager. The employee was discharged following an investigation into her discounting and purchasing practices.

The employee was discharged for misusing coupons. The employee would take the $2.00 coupons off of wine bottles, without purchasing the wine, and use the coupons to obtain a discount on other items in the store. The employee was later cited, and paid a fine, for fraudulently using coupons.

The employee marked down items below what they should have been discounted to and then purchased the items for herself.

The employee broke down a gift set of three Grey Goose glasses, packaged them in paper bags, and removed them from the store without paying for the glasses.

The employee asked salesmen for donations for a charity golf outing she coordinated for the Portage County Humane Society. The employee had the donations put in her vehicle rather than brought to the store. She did not get permission for such items.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 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' with in the meaning of the statute."

The commission finds that the employee engaged in a pattern of inappropriate and unethical conduct that demonstrated an intentional disregard of the standards of behavior the employer had a right to expect of the employee. The employee maintained that it was not necessary to purchase the wine in order to use the coupon. The commission does not find the employee's claim to be credible. The employee did not assert in her statement to the employer that a wine purchase was not necessary, only that the wine and the product to which the coupon would be applied did not have to be purchased at the same time. The employee also maintained that she took coupons that were about to expire as customers would get upset at the time of purchase if they found the coupons had expired. However, the employee would remove the coupons up to a week before the expiration date. The customers had the right to the use of the coupons until the coupons did expire. The employee claimed that the removal of glasses was an oversight on her part or the cashier's part. However, it was the employee who broke down the gift box and placed the glasses in a paper bag. It was the employee's responsibility to ensure she paid for items she removed from the employer's store. The employee received samples/and premiums from vendors and did not have a store manager's permission to do so. The commission is unpersuaded by the employee's assertion that the items she received from a vendor for a golf outing had nothing to do with the employer. The employee received those items because of her position with the employer. Whether the employee personally used the items, the employer had a right to expect the employee to seek management approval to receive such items.

The commission therefore finds that in week 4 of 2004 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $5,484.00 for weeks 4 through 29 of 2004, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 4 of 2004, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $5,484.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed November 16, 2004
rossil2 . urr : 132 : 1 : MC 630.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he found the employee generally credible. The ALJ did not impart any demeanor impressions of the employee that led to his credibility assessment. For reasons set forth above, the commission has reached a different conclusion than that reached by the ALJ.

 

cc:
Copps Corp. (Stevens Point, Wisconsin)
James B. Schmidt


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