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

GAIL E WIEME-TESKA, Employee

TEAM JO-ANN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07000773FL


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 4 of 2007, 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 employee is required to repay the sum of $2103 to the Unemployment Reserve Fund.

Dated and mailed August 3, 2007
wiemega . usd : 115 : 1 MC 657  MC 630.09

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked just over one year as a second shift merchandise manager for the employer, a fabric/craft retailer.

The employee's assigned duties included entering price change notices (PCN's) on the employer's computer database and then changing the price on the product tag. The employee either performed this duty herself or supervised its performance by a subordinate worker. The employee would indicate by her initials on a PCN report that the PCN process had been completed, and would then place this report in the employer's PCN binder.

Effective December 26, 2006, the employee was placed on a performance improvement plan. One of the primary deficiencies this plan addressed was the employee's continuing failure to carry out her PCN responsibilities in an accurate, complete, and timely manner. The employee's supervisor provided PCN retraining to the employee at that time.

The performance improvement plan provided notice to the employee that she had 30 days to improve her performance, and failure to show significant improvement would result in her termination.

The employee had been issued warnings in August and November of 2006 for not completing PCN's in an accurate, complete, and timely manner.

On January 20, 2007, the employee's supervisor reviewed the PCN reports the employee had completed and placed in the PCN binder since December 26, and discovered that the employee had indicated on the PCN forms she initialed on January 4, January 6, and January 10, that the PCN process had been completed in regard to the listed items, but in fact, although the price changes had been entered into the database, these changes had never been marked on the product price tags.

The employee was discharged on January 23 as a result.

The employee explained in her testimony that the store was not adequately staffed during the relevant time period, which prevented her from completing the PCN process, i.e., that the store was busy during the second shift evening hours, and often there would only be one other worker present. The employee had not offered this explanation to the employer at the time of her discharge.

Although the employee asserts that the store was busy during the second shift evening hours, the data of record does not support this assertion.

This data also does not support the employee's contention that the store was understaffed, i.e., that there were only two workers, including herself, present during evening hours. Specifically, on 1/4/07, there were 3 workers present from 5-9; on 1/6/07, there were 3 workers present from 4-7; and, on 1/10/07, although there were only 2 workers present from 5-9:30, there was little customer activity.

As a result, the commission agrees with the ALJ that the employee's assertion that she had not had adequate time to complete the PCN task is not credible. It should also be noted in this regard that the employee testified that she put the PCN reports at issue (1/4/07, 1/6/07, 1/10/07) into the PCN report binder at the same time, on or around Friday, January 19. As a result, she would have had many work shifts to complete the PCN process before the reports were placed in the binder and subject to review by her supervisor.

More importantly, however, the employee was necessarily aware that the PCN task had not been properly completed when, by initialing the PCN reports at issue, she validated that it had been. This was intentional and it was dishonest. The fact that it occurred on more than one occasion establishes that it was not an isolated oversight. See, Clay v. Imperial, Inc., UI Hearing No. 98402946GB (LIRC Aug. 26, 199) (inadvertence not plausible explanation given repeated actions).

Trust is such an essential component of the employment relationship that the commission and the courts have been consistent in holding that an employee's dishonesty in the course of this relationship supports a conclusion of misconduct, particularly where, as here, the employee's actions have a potentially significant effect on the employer's legitimate business interests. See, Gregory v. LIRC and MPS, Case No. 97-CV-001333 (Cir. Ct. Milw. Co. Dec. 4, 1997); Wise v. ABF Freight System, Inc., UI Hearing No. 03002541MD (LIRC Dec. 4, 2003); Lake v. Owen Ayres & Associates, Inc., UI Hearing No. 03002845MD (LIRC March 16, 2004).

 

cc: Jo-Ann Fabric & Craft Store (Fond du Lac, Wisconsin)



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