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

LAVERNE E KERTIS, Employe

THE COPPS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001116MD

On February 26, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 7 of 1998 the employe was discharged for misconduct connected with his employment. As a result, benefits were denied. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On April 2, 1998, the appeal tribunal issued a decision which affirmed the initial determination. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a grocery store chain, for approximately thirteen years, most recently as an assistant store manager. His last day of work was February 6, 1998. He was discharged on February 9, 1998 (week 7).

As an assistant manager, the employe was paid a set salary for 40 hours of work each week, excluding Sundays and holidays, for which he was paid time and a half. One of the employe's job duties was to visit competitors' stores in order to conduct price checks. The employe could make store visits at any time he chose and was not required to ask permission before doing so. The employe also performed other work outside of the store, such as work on the employer's charity drive and on its "consumer board" and "key card club." He was not required to submit any paperwork with respect to off-premises work.

In December of 1997 the employer received information from another assistant manager that the employe was leaving early on Sundays while reporting on his time records that he had worked a full shift. The employer's loss prevention department conducted an investigation of the employe, which consisted of watching video tapes in order to determine what time he was leaving the store and comparing this information with his time records. The employer's investigation revealed that the employe left the store earlier than reported on six Sundays in December of 1997 and January of 1998.

On February 6, 1998, the employer confronted the employe about his early Sunday departures. The employe admitted leaving early on the days in question, but stated that he made up the time he missed by performing work at home or making store visits to competing groceries. The employe was asked to prepare a written statement, in which he reiterated his explanation for the early departures. He also indicated that he had experienced a turning point in his attitude towards the employer following an incident in which a large amount of money was stolen from his office. The employe stated that at this point he made up his mind that he would be paid for the extra work he performed for the employer outside of the store.

During the February 6 meeting the employe was notified that he was suspended indefinitely. The following Monday, February 9 (week 7), the employe was discharged.

The issue to resolve is whether the employe was discharged for misconduct connected with his 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 employe, 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 employe'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 contended that the employe falsified his time records by reporting hours when he was not actually in the store. However, the employe explained that during the time periods in question he was either visiting competitors' stores or performing work for the employer out of his home. The evidence indicates that visits to competitors' stores were part of the employe's job duties and, further, that the employe was permitted to work at home.

The employer acknowledged that it had no way of disputing the employe's contention that he was performing work during the time periods in question, but indicated that it did not believe he was doing so because he did not follow designated procedures for working off-premises. However, the employer had no specific rules or policies addressing when and under what circumstances off-premises work was to be performed, and the employe was not required to document his performance of those tasks. (1) Consequently, the fact that the employe did not seek permission or document his time spent working off-premises does not lead the commission to believe that he falsified his time records on the day in question, and the commission is not convinced that any deliberate falsification occurred.

The commission therefore finds that in week 7 of 1998 the employe was discharged and not for misconduct connected with his 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 7 of 1998, provided he is otherwise qualified.

Dated and mailed: September 11, 1998
kertila.urr : 164 : 6  MC 630.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission consulted with the administrative law judge regarding the credibility and demeanor of the witnesses. The administrative law judge indicated that he did not feel the employe was absolutely credible when he stated he was making up the time. This credibility assessment was not based upon any negative impression of the employe's demeanor, but was grounded in the administrative law judge's belief that the employe was attempting to get even with the employer after money was stolen from his office. However, while the evidence does demonstrate that the employe was upset about the employer's response to the missing money and determined that from that point on any work done at home would be done on the clock, the employe's unwillingness to put in extra time for the employer does not necessarily indicate that he falsified records with respect to the work which he did perform. The commission sees nothing inherently incredible about the employe's explanation for his actions, and in the absence of any other evidence to suggest that he was not actually performing work for the employer during the hours reported, it does not conclude that intentional falsification of records occurred.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The loss prevention specialist testified "When I talked to the employe, he admitted he had been leaving early on Sundays. He said some days he would go home and other days he would work at home or make store visits. He said that he did both. Sometimes no work. Sometimes work at home. There was work to take home, but he did not have permission to take any work home. He was not specific about what work he took home. He made one comment regarding a project for the United Way--some sort of fundraiser. A store visit would be to one of our competitors in the area to check the store's lay-out design, business, or prices. In regard to whether this was one of the employe's duties, it would be a duty he would need permission to go out and do. The employe's store manager, Mr. Simpson, granted permission to take work home or make a store visit."

The store manager testified that "The employe did store visits on week days. He'd come to me concerning his store visits. He'd come in and say how Kohl's was looking that day, etc. He never asked if he could do those store visits on Sundays when he was in charge. He never came to me on a Monday, as he did on other days, with observations about he store visits to my recollection."

The store manager also testified "It was common place for the employe to leave the store daily at 4 pm because he had his other job to get to. His usual work schedule was 7am to 4 pm. In regard to whether the employe ever called me at home to say he would like to leave early, yes he did. He never called me at home on Sunday to get permission to leave early."

The employe never submitted a work performed off store premises form to the employer. Other department managers submitted the form to the store manager. The store manager testified "To the best of my knowledge, every time someone has worked off the store premises, one of these has been filled out. Once one of these forms were completed, they would be set on the time and attendance computer for the employe. In order for them to receive that pay, the employe would have to manually put the information into the time and attendance computer. The employe would by doing that be approving their work premises. . . . Store policy regarding doing a store visit and coming back to the store during a worker's schedule did not require filling one of these out."

The store manager also indicated that "I would prefer to have assistant managers or hourly workers do store checks during a slower time of the week, Monday-Thursday."

The employe testified "I did not treat work off the premises differently on Sunday from work off the premises on week days in terms of asking permission." The employe also testified " My comment was I would much rather be spending time with my father than working Sundays. I told him I left one day to visit my father. I had permission from Mr. Simpson. I explained to him prior to that that I was going to be leaving early that day to go visit my father."

On cross-examination the employe said "I left early a couple of times on a week day in my last 6 months. I asked Mr. Simpson for permission a couple of times. I also called him at home on one occasion for permission to leave early."

I agree with the administrative law judge that the employe's attitude changed when he lost $440 out of his checkbook while he was at work. The employe would talk to the store manager about his store visits he made during the week but never mentioned his alleged Sunday store visits to the manager. Sundays were busy days so it was not as likely that he would do the visits on Sunday. While he had called the manager at home to ask for permission to leave early he did not do it on Sunday.

The employe never told the employer he was doing work at home and never filled out a form that he was working at home. The employer did not know that the employe was claiming that he worked at home because he did not fill out the form. The employe told the loss prevention specialist he was working on the United Way campaign from home but then admitted at the hearing that "I think I was done with the pledge drive work after November."

I agree with the administrative law judge that the employe was intentionally falsifying his time cards because he was upset that he had lost money at work. Sunday was the only day he received extra pay and on Sunday, he got time and a half.

While I believe it was possible that the store manager might not have fired the employe for falsifying his time cards, I still believe that the employe's conduct was an intentional disregard of the employer's interest and this was misconduct connected to his work for unemployment purposes. I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner

cc:
ATTORNEY AARON N HALSTEAD
SHNEIDMAN MYERS DOWLING BLUMENFIELD EHLKE HAWKS & DOMER

COPPS FOOD STORE

ATTORNEY JOHN S SCHAUER
SEYFARTH SHAW FAIRWEATHER & GERALDSON

Appealed to Circuit Court. Reversed by Circuit Court, May 27, 1999.   Circuit Court decision appealed to Court of Appeals. Circuit Court decision reversed and LIRC decision reinstated by Court of Appeals, September 7, 2000 (unpublished).[Ct. App. decision summary]

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Footnotes:

(1)( Back ) While the dissenting commissioner seems to suggest that the employe was not supposed to perform off-premises work on Sundays and that, further, he was required to request permission from his supervisor before doing so and to fill out paperwork documenting his activities, competent evidence in the record indicates otherwise. The employe's supervisor, Pat Simpson, specifically testified that the employe could perform his off-premises work "any time he felt like it." While Mr. Simpson testified that a lot of managers would tell him if they made store visits during the week, he did not state that this was required. Mr. Simpson also testified that he was not present in the store on Sundays and that the employe was the top level manager on duty during the days in question. Finally, Mr. Simpson indicated that the employe had never submitted paperwork regarding off-premises work at any time, and that store policy did not require him to do so. In light of this testimony, the majority does not believe that the employe was required to follow any designated procedures with respect to his off-premises work.