In the matter of the
unemployment benefit claim of


Involving the account of


Hearing No. 88-402181 WU

A Department Deputy's Initial Determination held that in week 36 of 1988 the employe was discharged for misconduct connected with his work. As a result, benefits were denied.

The employe timely appealed the Initial Determination, and a hearing was held on November 29, 1988 before Administrative Law Judge Janine M. Smiley, acting as an Appeal Tribunal of the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunall Decision, issued on December 2, 1988, reversed the Initial Determination and found the employe eligible for benefits.

The employer timely petitioned for review by the Wisconsin Labor and Industry Review Commission. Based on the evidence and applicable law, and having considered the arguments presented by the employer in its petition, the commission makes the following:


The employe worked for about four years and six months for the employer, a window manufacturing business. The employe worked most recently as a grill builder. His last day of work was August 31, 1988 (week 36).

The employer's rules prohibit the removal of company property from the premises without permission. To enforce this rule and to prevent theft, random checks of lunch boxes or other containers are occasionally made at the end of a shift as employes leave work. The employer has a "scrap pass" procedure whereby employes may seek to obtain permission, given by way of a "scrap pass," to remove company property from the premises. The employe was aware of the employer's rule prohibiting the removal of company property from the premises without permission, and he was aware of the company's scrap pass procedure.

On August 31, 1988, the employe punched out at the end of his shift and walked out the door of the plant he usually used to exit the plant on his way home. The employe was carrying a paper bag under his arm. The paper bag contained two round wooden discs (one of a diameter of approximately two inches and the other of a diameter of approximately four inches, both approximately one and one-half inches thick), approximately 15 wood screws, two or three pieces of sandpaper, a small bottle of glue, a small metal shaft, and some batteries. The batteries belonged to the employe; the other materials belonged to the employer and had been taken from the plant by the employe.

When the employe stepped out of the plant on August 31, 1988, he was confronted by Dirk Peterson, the employer's safety director, who had stationed himself outside the door and was checking lunch boxes and other containers of employes leaving work as part of a random check being conducted by the employer on that day. Peterson told the employe that he had to check the bag, and the employe gave it to him. Peterson checked the contents of the bag, determine that it contained materials taken from the company, and told the employe that he had taken company property without authorization and that he (Peterson) would have to take it from him. Peterson advised the employe that someone would contact him later. All that the employe said at this time was that he did not think it would be a problem if he took a little glue home; he did not give Peterson any other excuse or explanation.

Later on August 31, 1988, the employe was telephone at home and advised not to report for work on the following day. On September 2, 1988 (week 36), the employe was notified that he was discharged because he had taken property off company premises without permission.

The employe contended that he was planning to use the materials to make a sanding disc for his use at work, and that he was taking the materials home to complete assembly of the sanding disc. However, this contention is not credible.

The employe's testimony was inconsistent in a number of material respects. Although he asserted at the hearing that he was removing the materials from the plant to take them home to make a tool for his use at work, he did not advance this reason when he was confronted by Peterson in circumstances which the employe knew placed him under suspicion, or when he gave an initial statement to the department in connection with his claim. At the hearing, the employe also testified, in contradiction to this explanation, that he was not heading home when he left the plant but was actually intending to go to the plant's maintenance department to work the wooden discs on a lathe. He then testified, in contradiction to that explanation, that he was intending to go to the plant's mulling area to locate his immediate supervisor to try to get a scrap pass to allow him to remove the materials from the plant. The employe's claim that he was taking the materials home to work on them is also called into question by his inconsistent testimony with respect to why he would do this. Initially the employe testified that he did not want to take up his work time to make the sanding disc, and so was working on it only during break time and, he allegedly intended, at home. However, the employe subsequently conceded that on that same day he had worked on cutting the circular discs out of larger pieces of wood while on work time.

The employe's conduct, in walking out of the plant at the end of his shift with company property intermingled with personal property in a bag, without a scrap pass when the employe was aware of the scrap pass procedure, raises a presumption that the employe was planning on appropriating the employer's property to his own personal use. A credible explanation might have been adequate to defeat the presumption, created by these facts, that the employe was intending to steal the materials. However, the employe's explanations were simply not credible. All that remains, therefore, is the evidence that the employe was walking out of the plant on his way home with the property of the employer in his possession. The commission considers that, in these circumstances, the record is sufficient to meet the employer's burden of demonstrating by a preponderance of the evidence that the employe was attempting to steal its property.

That the value of the property may have been minimal does not mean that the employe's actions were not misconduct. Theft from the employer may be misconduct even though the value of the items stolen is minimal; Weiley v. LIRC and Marc Plaza Hotel, (Milwaukee County Circuit Court, Case No. 626-822, October 12, 1984).

The Commission therefore finds that in week 36 of 1988, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. 108.04(5).

The Commission further finds that the employe was paid benefits in the amount of $130.00 per week for weeks 37 through 53 of 1988 and 1 through 9 of 1989, amount to a total of $3,380.00, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. 108.03(1), and that pursuant to Wis. Stat. 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.


TheAppeal Tribunal decision is reversed. Accordingly, the employe is ineligible for benefits based on employment with the employer. He is also ineligible for benefits based on employment with other employers beginning in week 36 of 1988, and continuing thereafter until he has again been employed within at least seven weeks in employment covered by the Unemployment Compensation Law of any state or the federal government and has earned wages in that employment equaling at least 14 times his weekly benefit rate with the employer against whom benefits are initially chargeable. He is required to repay the sum of $3,380.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Department Form UCB-700) issued on December 9, 1988, is set aside.

Dated and mailed July 7, 1989
110 : CD2001  MC 630.16   MC 694

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE: The commission consulted with the administrative law judge, who stated that she found the employe to be a credible witness. The commission disagreed with the administrative law judge's assessment of the credibility of the employe as a witness, principally based on inconsistencies in his assertions, more particularly described above.

Appealed to Circuit Court.  Affirmed February 28, 1991.   [Circuit Court decision summary]

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