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


GREGORY A VOSS, Employe

DOLLAR BILLS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00600574MW


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 employe worked approximately 13 months as a store manager for the employer, a retail discount store. The employe's last day of work was December 27, 1999 (week 1), the day he was discharged.

On December 24, 1999, Christmas Eve, the manager-in-training asked the employer's district manager, in the presence of the employe (the store's manager), whether they could close the store early that evening because it was Christmas Eve. The store was scheduled to remain open until 5:00 p.m. that night. The district manager informed the manager-in-training, as well as the employe, who was part of the conversation, that the store was to remain open until 5:00 p.m., the time corporate headquarters had decided. Despite the district manager's order, the employe and the manager-in-training closed the store on Christmas Eve approximately 3:00 p.m. that day. The employe was discharged for closing the store earlier than its 5:00 p.m. closing time. The manager-in-training received no discipline for her involvement.

Despite the instruction to remain open until 5:00 p.m., the employe and manager-in-training discussed closing the store earlier than 5:00 p.m. Accordingly to the employe, the strip mall where the store was located was closing at 4:00 p.m. Customers however would have had independent access to the store even if other stores in the strip mall were closing at 4:00 p.m. The employe testified that sales were slowing in the afternoon but admitted that it may have had more to do with the fact that the lights in the store had been turned off. The employe also based his decision to close the store earlier than 5:00 p.m. on information he had received from the manager-in-training. The manager-in-training erroneously reported that two other Milwaukee stores in the chain had closed earlier than their 5:00 p.m. closing time. Based on all these factors, the employe, as store manager, made the decision to close the store earlier than the 5:00 p.m. Christmas Eve closing time. According to the employer, it's policy manual provides store managers with the discretion to close early in the case of bomb threats, power outages or bad weather.

The issue for review is whether the employe's decision to close the store early constitutes misconduct. 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."

Although the employe as store manager had the discretion to close the store early, the decision was not based on the guidelines outlined in the employer's policy manual. In fact, the employe's decision, was in direct violation of the district manager's instruction and order given earlier that morning. Even accepting the employe's argument that the manager-in-training misrepresented the other store closings, the decision and responsibility to close early rested with the employe as store manager. The employe deliberately and intentionally disregarded the direct manager's instructions and in doing so committed misconduct.

The commission therefore finds that in week 1 of 2000, 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 amounting to $1,004.00 for which he is not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employe 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 1 of 2000, 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. The employe is required to repay the sum of $1,004.00 to the Unemployment Reserve Fund.

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 May 17, 2000
vossgre.urr : 135 : 1  MC 640.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Because credibility issues existed, the commission conferred with the ALJ as to her impressions and assessment of those who testified. The commission's reversal however is not based on any differing credibility assessment made by the ALJ. Rather, when applying the law to the facts at hand, the commission reaches a different legal conclusion. The commission is satisfied that the employe, as store manager, was solely responsible for the decision to close earlier than 5:00 p.m. on Christmas Eve. The employe made this decision despite instructions from his supervisor that the store was to remain open until 5:00 p.m. that evening. The employe's decision constituted an intentional disregard of the employer's interests and standard of conduct the employer had a right to expect of the employe, thereby establishing misconduct within the meaning of the law.

cc: DOLLAR BILLS


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