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

JEFFREY W GARON, Employee

GOODWILL INDUSTRIES OF NORTH

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06400614GB


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 5 of 2006, 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. The previously issued monetary computation is set aside and the employee's benefit year does not begin on February 12, 2006.

Dated and mailed August 25, 2006
garonje . usd : 150 : 2  MC 665.12  PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee petitioned for reversal of the misconduct decision. He cited the following in support of his claim that he should receive unemployment insurance benefits:

(1) a subordinate, who was discharged at the same time and under the similar circumstances, was allowed unemployment insurance benefits,

(2) he did not intentionally engage in conduct violating the standards and expectations of the employer but was taken advantage of by his assistant manager,

(3) his supervisor knew of and approved of his behavior regarding the final incident, and

(4) it was error for the administrative law judge not to continue the hearing in order to allow him to present a subpoenaed witness who did not appear to the hearing to testify.

With respect to the employee's argument that he should be allowed unemployment insurance benefits as the assistant team leader (Kotchon) was, the commission notes that each determination of eligibility is separate and determined on its own merits; the commission's review is based upon the record of the employee's case, not that of his coworker. Roach v. Labor and Industry Review Commission, Schneider National Carriers, Inc., Case No. 01-CV-919 (Wis. Cir. Ct. Washington County June 2, 2002). Specifically, the commission rules provide at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. For these reasons, the commission will not use Kotchon's determination, or that of the assistant manager (Culver), who was determined to have been discharged for misconduct connected with the employment, in reaching its decision as to the employee's eligibility.

Next, while there is nothing in the record to suggest that the employee knowingly participated in a fraud against his employer, he intentionally violated the standards of conduct the employer had a right to expect of him enabling the fraud to occur. In particular, the employee testified that he understood the policy was that all donated jewelry would be shipped to the employer's Darboy or Menasha locations for processing for sale. He did not follow this policy. Additionally, although he may have asked to process the sale at his location locally, the commission credits the employee's supervisor, the regional team leader, that (1) the employee did not receive permission to sell the jewelry locally and (2) the employee never provided follow up information to the regional team leader to make him aware of the manner in which the employee was proceeding with the sale of the expensive jewelry. Instead of following the policy, the employee took his assistant manager's word that she obtained a verbal appraisal that the jewelry was worth between $15,000 and $20,000. He then allowed her to take the jewelry off premises and allegedly broker a deal selling the jewelry to a third party for $5,000. He never sought permission from the employer to determine whether her alleged brokering of such a sale was acceptable or whether it was appropriate given his limited knowledge of jewelry and the lack of multiple appraisals or even one written appraisal. To compound the matter, the employee effectively hid this transaction by allowing the assistant manager to complete the sale by entering multiple cash sales into the employer's cash register over a number of days and reflecting sales of jewelry items priced at $100 or less. Such behavior clearly evinced a wilful and intentional disregard of the standards of conduct that the employer had a right to expect of a general manager of its retail location. It constituted misconduct.

Finally, with respect to the employee's claim that it was error for the ALJ not to continue the hearing in order to allow him to secure the appearance of a subpoenaed witness, the commission finds the ALJ's ruling was not in error. Wisconsin Administrative Code § DWD 140.10(4) provides that the ALJ may quash or modify a subpoena if he or she determines "that the subpoena has not been served in the proper manner." Wisconsin Administrative Code § DWD 140.10(5) further provides, with emphasis added:

The party at whose request a subpoena is issued shall serve the subpoena as provided under ch. 885 and s. 805.07 (5), Stats., and pay the witness fees and travel expenses specified under s. DWD 140.20 to the subpoenaed witness at or before the time of service. An attorney issuing a subpoena shall comply with the requirements of s. 108.14 (2m), Stats.

In this case, when the employee served the subpoena, he did not pay the witness fee and travel expenses fees. While the general subpoena instruction sheet references "offering" and "paying" fees at time of service for a valid subpoena, the actual subpoena, a copy of which remains in the hearing file, directed the employee:

Except when subpoenaed on behalf of the state (e.g. the Department of Workforce Development), the witness must be paid at the time of service.

As such, the employee received direction on proper service and the commission will not disturb the ALJ's ruling on the subpoena.

For these reasons, as well as those set forth by the administrative law judge, the commission finds that the employee was discharged for misconduct connected with his employment.

 

cc: Goodwill Industries of North Central Wisconsin



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