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

BRADLEY J POLENSKY, Employe

OSCAR MAYER FOODS CORP, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96001843MD

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 11 of 1996, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed: October 10, 1996
polenbr.usd : 135 : 0 MC 687

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The employer discharged the employe for eating a hot dog on its production line and leaving the line to talk to a union steward about the incident. At the hearing, the employer's unit manager testified that it was unacceptable to taste a hot dog on the plant floor. The employe testified that he taste tested the hot dog because the casings were not coming off properly. The employe thought there may have been a problem with the smokehouse end. The employe conceded that there were written rules regarding production guidelines. The employe, however, qualified that admission by stating that in the fall of 1995 his permanent supervisor said that it was "okay to eat the hot dogs if they were having problems." The administrative law judge found the employe's concern about the product to be incredible in view of the employe's conceded failure to follow the sanitary practice of changing his gloves to prevent possible contamination from his mouth. In addition, the administrative law judge acknowledged that even if the employe had observed some supervisors occasionally eating product, the employe knew or should have known that these actions were not condoned by the employer. Given the nature of the employer's business, it seems highly unlikely that the employer's rules, whether written or verbal, would not prohibit the consumption of food on its production line or that the employer would tolerate or condone the consumption of hot dogs, even for "quality testing" in the "at ready area" of its plant. The commission therefore accepts the employer's testimony concerning its rules regarding the consumption of food on the production line. The employe's arguments to the contrary are incredible.

The employe also contends that his violation was "de minimis" and that his purported leaving of the work area should not amount to misconduct. Because the employe intentionally violated the employer's production guidelines, the commission does not believe any analysis regarding de minimis theft or the purported time away from the employe's machine is necessary. The commission is satisfied that the record establishes that the employe committed misconduct when he intentionally violated the employer's production guidelines and taste tested a hot dog in the "at ready area" of its plant.

cc: SHARON CAPACCIO
C/O OSCAR MAYER FOODS

ATTORNEY JOHN TALIS
LAWTON & CATES SC

Appealed to Circuit Court. Affirmed July 2, 1997.

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