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

DANIEL J ALLEN, Employee

INDUSTRIAL TOWEL & UNIFORM INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09402439AP


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 route sales and service representative for about four and a half years for the employer, a textile rental and industrial laundry business. He serviced up to 146 customers. The employee was allowed to leave employer owned products with customers or potential customers for a trial period as long as he completed a "customer change order" (CCO) documenting the items left and the customer identity. This would prompt regular reminders to the sales person to retrieve the trial item(s) and return them to the employer. The employer's rules and regulations, of which the employee received a copy, provided that "misusing or removing from the premises, without proper written authorization, company records or property or the property of others" could result in an immediate discharge, "depending on the specific circumstances of the violation." The employee never received a warning for violating this policy.

It was a common practice for route sales personnel to leave a product for a customer on a trial basis and write up the CCO later in the day when time allowed or to delay writing the CCO until the next visit to the customer, up to four weeks later, and write up the CCO if the customer decided to lease it. If the customer failed to lease the product, it was to be retrieved for the employer. However, it was not established that management was aware of this practice of delaying the CCO until the next visit to the customer.

The employee was on a leave of absence from sometime in November of 2008, until mid-February 2009 for medical reasons. Many of the sales persons' routes were reassigned during his leave. Several sales people who assumed parts of the employee's route during his leave discovered employer product (floor mats) in some of the businesses for which the customer was not being billed. A list was presented to management and an investigation followed. The investigation revealed that the employee had placed extra mats at two bars in November of 2008 for which he had never completed a CCO and for which the customer was never billed as a result. It was also discovered that he placed trial mats at three other businesses as long ago as early 2008 without completing a CCO. In another customer business where several large mats had been placed on trial before the employee assumed the route the employee did not inquire as to why the customer was not being billed for their use. He was discharged on May 27, 2009 (week 22) for misuse of employer product and removing employer property without the proper documentation.

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 argued that his discharge was not for misconduct. The commission agrees. The employee kept trial items to a minimum so he was able to keep track of them without writing up a CCO. He normally filled out a CCO. However, the employee would occasionally leave something if a customer indicated it was needed immediately but the employee would not be returning to the customer's location for at least a week or two. The employee left a small mat to prevent a trip hazard at a customer location. The employee forgot to fill out a CCO because he was doing other things. The employee left mats for two bars a week before he had his heart attack and could not follow up on the possible sale a week later as he intended. With respect to the bowling alley, the mats were in place before the employee began servicing that account and the employee mistakenly believed that the mats were owned by the bowling alley. There was a mat that he loaned a restaurant as a trial about six month earlier. He left some trial mats for a pizza restaurant which closed without warning. The employee filled out paperwork for it. A new owner opened under a new name. The new owner did not believe that the mats belonged to the employer. The new owner refused to return the mats. The employee would stop by on occasion, attempting to sell them services. The employee was not aware that he needed to fill out another CCO for the new owner. The employee believed that he was handling the situation properly.

The employee's aforementioned actions included two incidents of forgetting to complete the CCO's, another instance when he did not have the clear responsibility to question a customer about a mat left by his predecessor, a heart attack intervening before he could follow up with a possible sale a week after leaving mats on a trial basis and one incident where he allowed a pizza restaurant's successor to use mats for an extended period of time. The employee had allowed customers to use the employer's products on a trial basis without completing a CCO until the next visit throughout his employment and had never received a warning for his actions. Of more than 100 customers he serviced at any time during his four and one-half years of employment, these aforementioned errors appear to be minimal. With respect to the pizza restaurant, the employee had obtained a CCO when he left the mats for a customer, hoping to sell them. The customer unexpectedly closed and a successor took over. The employee went to the successor and informed it that the mats in its possession belonged to the employer. The successor refused to return the mats. The employee would occasionally stop and attempt to obtain the pizza restaurant's business. The situation involved in this case was unusual. The employee was not aware that he needed to fill out a different CCO for a new customer. The employee should have brought the problem to the attention of a supervisor. However, his failure to do so amounted to an isolated instance of poor judgment on his part. While the employer may have made a valid business decision when it discharged the employee his actions did not evince such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 22 of 2009, the employee was discharged but that his discharge was not for misconduct connected with his 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, if otherwise qualified.

Dated and mailed January 26, 2010
allenda . urr : 145 : 5 MC 657

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner



MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that the employee was a credible witness who had a large number of accounts. The commission agrees with the ALJ's credibility assessment in that regard. The employee had a number of accounts and made for the most part, small mistakes. With respect to the pizza restaurant, this was a new situation for the employee and while he probably should have handled it better the commission concludes that his actions did not amount to an intentional and substantial disregard of the employer's interests.


cc: Industrial Towel & Uniform, Inc. (Neenah, Wisconsin)


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