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


ANGELO C BONACCORSO, Employe

UW MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98608073MW


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked almost three years as a custodian for the employer, a university. His last day of work was October 30, 1998 (week 44), when he was discharged.

On the employe's last day of work, he was stopped when he set off the security alarms as he attempted to pass through the doors of the library where he worked. He was leaving for his first break of the night when this occurred. The employe was asked if he had anything on him which might have set off the alarms. He removed items from his pockets. The security guard noticed a book shaped lump under his shirt, apparently stuck into his waistband. The employe was asked to remove it. It was a library book with the label and due date slip removed. However it still had the library's stamp and bar code on it. The librarian checked the records and determined it was a current book and not checked out to the employe or another patron. The employe explained that he had found it in the recycling bin, wished to read it, and was simply taking it with him on break. The employer discharged the employe for attempting to steal the book.

The issue to be decided is whether the employe's discharge was for misconduct connected with his 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 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 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 employe denied that he intended to steal the book and countered that if he had he wished to steal it he could have done so by placing it in his trash bin and taking it to the loading dock which was unsecured. He further indicated that he had in the past turned in items of greater value to the employer.

The commission does not credit the employe's denial. The employe concealed the book under his shirt and did not mention it until the security guard asked him what was under his shirt. This evidence of deliberate concealment shows intent to remove the book from the library without the employer's knowledge. While the employe denied it was concealed and testified that it was in a jacket pocket clearly visible, two employer witnesses contradicted him and testified it was under the shirt, tucked into his waist band. The commission concludes that the employe deliberately concealed the book with the intention of stealing it. Theft is in clear disregard of the employer's interests and constitutes misconduct.

The commission therefore finds that in week 44 of 1998, the employe was discharged for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits totaling $3,043 for weeks 49 of 1998 through 13 of 1999, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

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 employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 44 of 1998, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $3,043 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700), issued on November 2, 1998 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

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 employe 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 September 13, 1999
bonacan.urr : 178 : 5 MC 630.14

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing. As he indicated in his decision, the ALJ was persuaded that the employe did not intend to steal the book by the fact that another apparently fool proof method was available and also by the fact that the employe had turned in items of value to the employer in the past. The commission places greater weight on the evidence of concealment and the employe's failure to promptly mention the book when he was asked if he had anything which might have set off the alarm. If the employe had genuinely believed the book had been discarded by a library patron, the commission believes he would have shown the book when asked to empty his pockets rather than remain silent until the security guard pointed out the lump under his shirt.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc:
P J BOYLAN
SENIOR UNIVERSITY LEGAL COUNSEL
OFFICE OF LEGAL AFFAIRS


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