Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: William W. Nutter (Hearing No. 95000853WU) v. LIRC and Gander Mountain, Inc., No. 95-CV-143 (Wis. Cir. Ct. Lincoln County July 11, 1996) Michael Nolan Circuit Judge

Digest Codes: MC 630.01 MC 630.05

The employe worked for the employer, a retail sporting goods store, as a part-time sales associate in fishing beginning September 1994. Prior to his employment, the employer ran a promotion which gave a free tackle box to purchasers of a trolling motor. Some of those tackle boxes remained in the store’s stock area. The fishing department manager told the employe to price those boxes at $34.99 and put them on the floor for sale. On November 15, 1994 the employe purchased one of the boxes for one cent. The remainder were subsequently offered for sale at $34.99. In early January the employe told a co-employe that he had been told that the boxes were free and had purchased one for one cent. That information was given to the fishing manager and after an investigation the employe was discharged on January 5, 1995. The commission found that the plaintiff had been discharged for misconduct.

Held: The record regarding who discovered the tackle boxes, when they were discovered and when the employe was told to reprice them is very uncertain. The fishing manager testified that he found the boxes and he thought he told the employe to price the boxes at $34.99 in December 1994. Since the employe purchased the box on November 15, 1994, they were discovered on or before that date. The commission’s conclusion that it did not believe that the employe would have noticed the boxes if he had not initially wanted to purchase one or had not already been told to reprice them, is based on very weak evidence and is not supported by credible and substantial evidence. The circumstances of the purchase and the employer’s discovery of it do not support a conclusion of misconduct. Commission decision reversed.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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