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

JEAN M BELL, Employee

PICK N SAVE MEGA FOODS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601081MW


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 for about three years as a cashier for the employer, a supermarket. Her last day of work was on January 5, 2007 (week 1).

In November of 2005, the employer trained the employee on a targeted coupon program. A cashier gives a customer a competitor's coupon based on the customer's purchases. For example, a customer who buys one brand of cigarettes might receive a coupon for a different brand. The employer's workers, including the employee, watched a video that instructed them to throw out any coupons declined by the customer. The employer only wanted the specific customer who received the coupon to use it.

The employee followed this practice until November of 2006 when she decided to give declined coupons to her regular customers who purchased the items. She also used two coupons worth less than $5 for herself.

The employer's corporate security investigator met with the employee regarding her handling of targeted coupons. The employee stated that she was not aware of the procedures or policy. The employee admitted giving coupons to regular customers or if they were buying a specific item that she knew there was a coupon for. The employee indicated that she did not feel she was hurting anything by keeping the coupons or passing them out to regular customers. The employee stated that she believed it was good customer service to offer the coupons to customers who did not have them.

On January 5, 2007, the employer suspended the employee pending investigation as to whether the employee had violated the company rule against intentional misredemption of coupons. That rule provides for immediate discharge without a prior warning. After investigating, on January 16, 2007 (week 3), the employer discharged the employee for this offense. The employer also discharged ten other workers for similar conduct.

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

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 insurance 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' within the meaning of the statute."

The employee was not aware that she could not give coupons to other customers or keep them for herself. The employee was informed in the video that if the customer did not want the coupon it should be discarded. It was never made clear to the employee that the coupons could not be used by other customers. The employee's testimony leads the commission to conclude that she was not aware that the target based coupon program was to be limited to customers buying the product of the manufacturer's competitor. There was no evidence that the employee was trying to conceal her activities from the employer. In addition, the commission infers from the fact that ten other workers were discharged for engaging in the same or similar conduct that it was not clear to the workers that their conduct was prohibited. The employer's work rule provides for discharge for the intentional misredemption of coupons. The commission concludes that the employee did not engage in the intentional misredemption of coupons.

The commission therefore finds that in week 3 of 2007, the employee was discharged but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 3 of 2007, if she is otherwise qualified.

Dated and mailed July 9, 2007
bellje . urr : 132 : 8 :  MC 687   MC 691

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, 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 the employee came across as a pleasant and reasonably honest individual. The ALJ believed the employee was acting with mixed motives in that she was honestly trying to help customers, but also used the coupons for her own benefit. The commission accepts the ALJ's favorable credibility assessment of the employee. The commission concludes that the employee no more believed it was improper for her to use the coupons than it was to offer them to her customers.

The commission notes, however, that the record, including a review of the digital recording of the hearing, does not support the employee's assertions that the ALJ acted improperly at the hearing or was biased against the employee.

cc: Pick N Save - West Allis, WI


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