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


TAMMY J ELLINGSON, Employe

STRUCTURE INC, Employer
c/o EMPLOYERS UNITY

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200907EC


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 employe worked for the employer, a retail store, for approximately three years, most recently as store manager. Her last day of work was May 23, 1999 (week 22).

The employer has a policy forbidding employes from using their employe discounts for anyone other than themselves or their dependents. Further, where a manager makes a purchase for him or herself, such purchase must be executed by another manager.

On or about April 16, 1999, the employer received an anonymous tip that there were security violations in the employe's store. As a result, the employer's district manager conducted an audit of the "associate purchase log" at the employe's store. This audit was conducted in late May of 1999, and three violations were discovered.

First, the employer contended that on February 23, 1999, the employe rang up her own purchase in which she gave a discount to her boyfriend, who then paid for the merchandise using his charge card. The employer maintained that this constituted a violation of both rules referred to above. However, while the employe used her own employe number to ring up the purchase, there was another manager present at the time. Moreover, the employe had previously asked a district manager whether she could use her discount for her boyfriend, and had been given permission to do so.

Next, the employer contended that on March 17 the employe coerced another manager into ringing up a purchase for her in which she gave a discount to a subsequent boyfriend. However, no coercion took place. The employe did not believe she was doing anything wrong and thought she had been given permission to use her discount for a boyfriend.

Finally, the employer alleged that on May 15 the employe rang up a discounted purchase for herself using another manager's number, but that she did so fraudulently, as the other manager's shift had not yet began at the time the employe rang up the transaction. However, the manager in question had stopped in the store prior to the start of her shift, at which time she authorized the employe's purchase.

On May 23, 1999 (week 22), the employe was discharged for the three incidents described above. The issue to be decided is whether the employe's discharge was due to misconduct connected with her 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 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 employer alleged that the employe engaged in discount abuse by giving discounts to friends. However, the employe had been told by a former district manager that she was permitted to use her discount for her boyfriend and did not believe she was doing anything wrong. The employe testified, without rebuttal, that she had used her discount in this manner in the past and that, although prior audits had been performed, no one ever had any problem with her actions. Consequently, the commission sees no reason to conclude that the employe deliberately abused her employe discount.

The employer also maintained that the employe coerced another manager into approving an invalid discount for a friend and that she improperly rang up her own discount on two occasions, in one instance falsifying the other manager's approval. However, the employer failed to prove these assertions. The manager in question did not appear at the hearing, and no evidence was presented to establish that she was coerced by the employe or that her approval was fraudulently added to one of the employe's discounts. Regarding the latter allegation, it was the employe's testimony that the manager was present in the store at the time the transaction occurred and did, in fact, approve the transaction. Finally, while the employer's evidence did establish that on February 23 the employe rang up a purchase using her own employe number, it failed to demonstrate that this amounted to a deliberate rule violation on the employe's part and the employe denied having rung up sales for herself without management approval. Moreover, even if the commission were to conclude that the employe did ring up her own purchase on February 23 without seeking the requisite management approval, it would consider this to be an isolated instance of unsatisfactory conduct which was not sufficiently egregious as to rise to the level of misconduct.

The commission, therefore, finds that in week 22 of 1999, the employe was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 22 of 1999, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed  November 3, 1999
ellinta.urr : 164 : 2   MC 630.09  MC 691  PC 714.04

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that she found the employe to be "glib" and a "smooth talker" and did not credit her testimony. The administrative law judge further indicated that the employer's documents speak for themselves, and that she did not consider it necessary to assess the credibility of the employer's witnesses. However, while the employer's documentation establishes what transactions occurred, it does not prove that the employe lacked management approval for the purchases in question, nor does it establish that she intentionally violated any of the employer's rules or policies. The employe testified without rebuttal that she did have management approval for her purchases and, further, that she had reason to believe she could use her discount for boyfriends. The commission sees nothing inherently incredible about this testimony and, in the absence of any firsthand testimony to the contrary, accepts the employe's version of the facts.

 



PAMELA I. ANDERSON, COMMISSION (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge. With regard to the February 23, 1999 purchase, the employe used her own number to ring up the purchase and to approve the purchase of her boyfriend. While it is possible she might have had approval to have a discount for her boyfriend if he was a dependent, she did not have approval to ring up those purchases. There was testimony at the hearing that she had lived with the first boyfriend for three years.

Three weeks later, the employe used her number to ring up and approve a personal check of her second boyfriend. The employe was the supervisor of the other manager who signed the slip. The final incident occurred when the employe used another manager's number to ring up a sale for her. The other manager was not on duty at the time. The employe testified "As for the transaction that was dated before she came to work, she was always in the mall walking her baby. I had a wedding that day. She could have possibly came in and ran down to Target. She has done that often. I can't remember the situation." The employe's testimony was not at all convincing. I agree with the administrative law judge's credibility assessment.

The employe also indicated that she never used her own number to ring up things she purchased. I interpret that statement to mean that she could ring up things for her boyfriends but to do that would subvert the employer rule. The boyfriend would be getting a discount because he was standing in her shoes. The employer has no guarantee that the discount was properly applied or that all the items purchased were rung up. I do not believe the employe had permission to use her discount for the second boyfriend. The employe testified "The district managers said it was okay that my live-in boyfriend come in when another manager was present and they would ring up the sale for him."

The case would have been easier if the employer had brought A. Hunt to testify that the employer forced her to sign the slips. But even without that testimony, I believe there is sufficient evidence to uphold the administrative law judge's decision. For these reasons, I would agree with the administrative law judge and find that the employe was discharged for misconduct connected with her employment.

___________________________________
Pamela I. Anderson, Commissioner


cc: ATTORNEY JAMES W FLORY
WILEY COLBERT NORSENG CRAY & HERRELL SC

STRUCTURE


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