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

RICHARD A GERLIKOWSKI, Employee

SNYDERS OF HANOVER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08402632GB


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 as a district sales manager for about nine and one-half months for the employer, a distributor of snack foods. He worked in essentially the same capacity for the employer's predecessor since April of 2004. The employer contracted with independent operators/suppliers (IO's) to provide and deliver the snack foods to the various businesses, such as grocery stores. The IO's delivered their own product to the stores and were paid by the employer only if the products were sold. The employer's rules, of which the employee received a copy, provided for immediate dismissal for workers who falsified or altered any company document, record, report or daily paperwork. Workers who sabotaged the company were also subject to immediate discharge.

The employee had problems with the performance of two of the IO's who supplied and delivered product to the stores served by him. Those IO's would leave stale or out-of-date product on the customer's shelves and fail to service customers often enough to keep the employer's products adequately stocked. He disciplined one of them in March of 2008 when he discovered product on the shelves of his Wausau store two to three weeks beyond their freshness code date. The employee rode with one of the IO's sometime in July of 2008 because of those problems and because the route had recently been changed. Once again, he discovered beyond freshness date products on the shelves and insufficient product at the location a day after the IO claimed to have serviced that location.

The employee told another IO sometime that summer that higher management had complained that on a visit to one of his stores on a Saturday, the store shelves were virtually devoid of the employer's products. The employee told the IO, as he had informed the other IO, that if he chose not to service customers on weekends that he (the IO) would have to arrange for someone else to do it. The IO in the first incident notified the district sales manager in September of 2008 that, among other things, when the employee removed the out-of-date product on the store shelves, he discovered two jars of IO supplied salsa that were nearing the freshness expiration date. He told the IO that he could remove the Federal Food and Drug Administration mandated freshness expiration date with nail polish remover and move the salsa jars to the front of the shelve where customers would be more likely to select them. The other IO made the same complaint regarding two salsa jars at one of his stores as well.

When questioned by the district sales manager, the employee admitted to the accusations and conceded that he was wrong to have done it. He also explained that he made the suggestion to help the IO's save money by selling the product rather than having to waste it. He opined that customers would be less likely to select a product that was nearing its freshness expiration date and that the removal of the date would enhance the chances of the sale of those four jars of salsa. He also added that he had instructed the IO's to watch for the sale of the salsa jars and to remove them by the freshness expiration date if they hadn't sold by then. Additionally, he planned to check on those salsa jars at his twice weekly visits to those locations to ensure that they were removed on or before their freshness expiration dates. The district sales manager referred the matter to the employer's human resource department. He discharged the employee on September 19, 2008 (week 38) at the direction of the human resource department for his above actions in violation of the employer's aforementioned rules.

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.

The commission finds that the employee's suggestion that the IO's should remove the FDA mandated freshness date demonstrated an intentional disregard of standards of behavior it had a right to expect of the employee. The employee knew his conduct was wrong. Further, the employee was relying on IO's who had repeatedly failed to adequately service customers to make sure the product was removed before the expiration date. The employee's "plan" to check to ensure the product was removed does not detract from the seriousness of his conduct. The desire to save IO's money did not justify violating federal law. A reasonable person in the employee's position would have considered his conduct to be a willful interference with the employer's interests.

The commission therefore finds that in week 38 of 2008 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $7,503.00 for weeks 39 through 52 of 2008 and weeks 1 through 7 of 2009, 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), departmental 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 departmental 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 departmental error. See Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 38 of 2008, 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 $7,503.00 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 February 26, 2009
gerliri . urr : 132 : 1 : MC 699 : MC 675

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ indicated that she found all the witnesses to be credible. The ALJ did not impart any particular demeanor impressions that she had of the witnesses. The commission has reversed the ALJ because it concluded that a reasonable person in the employee's situation would understand that his conduct demonstrated an intentional and substantial disregard of the employer's interests.

cc: Synder's of Hanover (Green Bay, Wisconsin)
Heiss Gibbons & Company, Inc. (Mechanicsburg, PA)


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uploaded 2009/02/27