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


KENNETH W MONCRIEF, Employe

SEARS ROEBUCK & CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002498FL


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 consolation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for two and a half years as a customer service advisor for an automobile repair business. At the time of the discharge he was receiving management training and was acting as manager. He was discharged on May 27, 1999 (week 22).

On two occasions prior to the final incident, the employe was warned by the employer. In the first instance, the employe gave a co-worker a discount in excess of the 10% allowed by the employer's policy. He was warned that he was not to give unauthorized discounts. In the second incident, the employe permitted non- employe friends of his to look at the engine of worker's car which had broken down and been moved into the employer's shop. On that occasion, the employe was warned that all work must be accompanied by a work order and that no non- employe personnel could perform services at the employer.

On the final occasion, the employe had been helping in the shop due to a staffing shortage. A former co-worker entered the shop and presented him with two tires to be dismounted. The employe dismounted the tires from their rims and returned the tires and rims to the customer. The employe neither asked for nor saw a work order. He did not observe the customer pay for the service. The employer had no work order or record of payment for this transaction in its records. When confronted by the employer about this, the employe stated that he believed that this service was complimentary. He later admitted that he knew the charge was $6.50 per tire unless they were Sears tires. The employe excused his failure to ask for the work order, by stating that he was only helping out instead of acting as the primary tech. Therefore, he had not seen any work orders that day and, to the extent he thought of it at all, assumed the paperwork was handled by others.

The issue is whether the employe committed misconduct by knowingly acting in violation of the employer's policy by doing this service for free and without a work order.

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 admitted dismounting the tires. He also conceded being on notice regarding work orders and properly charging for services, the only issue before the commission is whether the employe knowingly violated those policies. The commission concludes that he did. The employe was the acting manager of the shop. The employe was on notice that the employer regarded work orders and appropriate charging as essential. The commission is unpersuaded by his assertion that he believed this matter was handled by others. The commission concludes that the employe intentionally provided a free service to this former co-worker and knowingly violated the employer's policies regarding work orders and charging for services. Such actions are in deliberate and substantial disregard of the standards of conduct the employer has a right to expect.

The commission therefore finds that in week 22 of 1999, 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 $1,934 during weeks 23 through 30 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 decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 22 of 1999, 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 $1,934 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700), issued on June 1, 1999 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 November 26, 1999
moncrke.urr : 178 : 6   MC 687

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission consulted with the administrative law judge prior to reversing. The ALJ found the employe well intentioned but capable of poor judgment. The commission is unpersuaded that the employe acted without awareness that his actions violated those employer policies he had previously been warned about.

cc: SEARS AUTO CENTER

DEBRA L BRUBAKER
CLAIMS REPRESENTATIVE
C/O GATES MC DONALD


Appealed to Circuit Court. Affirmed July 29, 2000. [Court decision summary]

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