CINDY L PATTERSON, Employee

WAL-MART ASSOCIATES INC, Employer

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:

The employee worked for the employer, a discount store, for fourteen months as a loss prevention worker. Her last day of work was June 21, 2004 (week 26).

On June 10, 2004, the employee ran into an acquaintance at a local restaurant who complained that he had had a bad experience as a customer at the employer's store. The acquaintance/customer had arranged for the employer to hold a patio set for him, but the employer sold it to another customer. The employee told the customer that she would check into the situation and help take care of it. The following day the employee talked to the department manager, who arranged to give the customer a $100 discount on another patio set. The new patio set cost more than the one the customer had originally chosen, and after the discount, the price was over $500. The patio set had a separate umbrella and stand, which the customer was also interested in. He asked whether the stand came with the umbrella, and the employee in turn asked the lawn and garden associate on duty whether the umbrella stand came with the umbrella and, if not, whether they could throw it in. The associate stated, "Well, that's pushing it, but okay." The employee then told the cashier that the customer was not being charged for the umbrella stand. The cashier therefore rang up the patio set and umbrella, but not the umbrella stand. The umbrella stand would ordinarily have cost $24.97.
The employee was discharged on June 21, 2004, based on the above incident. The issue to be decided is whether the employee's discharge was due to misconduct connected with her 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 employer contended that the employee misappropriated company assets, and that this amounted to misconduct. The commission disagrees. The employee did not engage in an act of theft, but threw in some extra merchandise for a disgruntled customer without charge. The employer had impressed upon the employees the value of ensuring customer satisfaction, and the employee felt she was acting in the employer's interests by attempting to keep the customer happy so he would return to the store. Although she was not a manager, the employee believed she was allowed to make certain types of management level decisions given the nature of her job. The department manager had been able to take $100 off the price of the patio set, and the employee had seen management give things away to customers before under similar circumstances. The employer had no clear policy on whether or when it was okay to throw something in or adjust a price in order to keep a customer happy, and the employee was not on notice that the employer would regard the matter as a misappropriation of company property. While the employee acted outside of her authority in giving the customer the umbrella stand without charge, her actions were not undertaken in wilful and substantial disregard for the employer's interests.

The commission, therefore, finds that in week 26 of 2004, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 26 of 2004, provided she is otherwise qualified. She is not required to repay the sum of $287 to the Unemployment Reserve Fund.

Dated and mailed February 9, 2005
patterc . urr : 164 : 4  MC 630.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

NOTE: The commission conferred with the administrative law judge regarding his impressions of the credibility and demeanor of witnesses. The administrative law judge was unable to impart any demeanor observations that lead to his credibility assessment of the employee. The commission finds credible the employee's testimony that she was trying to help the employer by keeping the customer satisfied and that she believed she was not doing anything wrong.

cc: Wal-Mart Associates Inc. (Marshfield, WI)

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uploaded 2005/02/22