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

AARON M PRINGLE, Employee

WAL-MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09612027MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer for about a year and a half as a tire technician. His last day of work was November 11, 2009 (week 46).

Part of the employee's job was to gauge the depth of the tread of tires returned by customers. The customer's refund is related to the amount the tire has been used. The more tread depth there is, the less the tire has been used.

Sometime prior to his last day of work the employee mismeasured a tire. Because the employee incorrectly noted the depth of the tread, a customer received approximately $20 more than he or she was entitled to. When the employer confronted the employee about the error he admitted that on one occasion he read the tread off the wrong tire. The employee was discharged based upon that incident.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 measured the tread off the wrong tire. This error resulted in a customer's receiving a greater refund than he or she was entitled to. The employer presented no evidence to suggest that the employee's actions were anything more than an isolated instance of poor job performance.

The commission, therefore, finds that in week 46 of 2009, the employee was discharged and not for misconduct connected with his employment, 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 46 of 2009, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed July 14, 2010
pringaa . urr : 164 : 5 MC 660.01 : PC 714.11

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The appeal tribunal found that the employee engaged in misconduct. The appeal tribunal reasoned that, because the employee did not appear at the hearing to explain his actions, it must be presumed they were deliberate. However, the employer has the burden of proof in this matter, and the evidence presented by the employer does not support such a finding. The employer presented a signed statement by the employee indicating that in one instance he read the tread off the wrong tire. The employer also presented a report it prepared based upon an interview with the employee in which he made a similar admission. The employer's only witness, the loss prevention manager, testified that based upon the employee's statement made during the interview, it appeared the employee took the wrong tread depth mistakenly. However, the employer nonetheless maintained that the employee's error was deliberate. The employer's witness explained that, although she did not believe the employee said anything to lead the interviewer to conclude that he acted deliberately, the individual who interviewed the employee came to that conclusion through the employee's written statement. The loss prevention manager further elaborated that, although she could not tell from the employee's written statement that he acted on purpose, the interviewer was able to read more into the employee's statement than she could.

No evidence was presented to suggest that the employee misread the tread depth deliberately, and the employer's own witness did not think the employee's actions were deliberate. Although the individual who interviewed the employee about the matter apparently reached a different conclusion, that individual did not appear at the hearing to explain how she arrived at that conclusion.

The commission did not confer with the administrative law judge about witness credibility and demeanor prior to reversing. The commission's reversal is not based upon a differing assessment of witness credibility. Rather, for the reasons explained above, the commission does not believe the employer presented evidence that would permit a finding of misconduct.

cc: Wal-Mart Associates, Inc. (Waukesha, WI)


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uploaded 2010/08/11