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[STATE OF NEW YORK UNEMPLOYMENT INSURANCE APPEAL BOARD every oeco ata [ADMINISTRATIVE LAW JUDGE SECTION wSicaney Sten P.0.80x 25002 a ensco rs NSS TAPME CA LO BROOKLYN NY 11202:9002 ugiuron Guar (716) 013-3500, Naan So ‘eneaa 4 oeuso FAK) 61.3868 ‘rtm Sauer senor Absent ECE erected DECISION AND NOTICE OF DECISION DECISION Y AVISO DE LA DECISION TOMADA Mailed and ried: FEB 1 7 2009 ALJ. Case No. 009-01175 IN THE MATTER OF: RALPH REESE WHOLE FOODS MARKET GROUP 41-05 12 ST APT 2F 4 UNION SQ SOUTH : LONG ISLAND CTY NY 11101 NEW YORK NY 10003-0000 QUEENS LEGAL SERVICE INC. 4 ‘TALX UCM SERVICES INC 42-15 CRESCENT STREET-9TH FLR. PO BOX 283 LLC, NY 11101 ‘SAINT LOUIS MO 63166-0283 JOSEPH CANFIELD _ 163 BELMONT AVE FLR2 JERSEY CITY NJ 07304 Department of Labor Office: 834 Hearing Requested: January 12, 2009 PLEASE TAKE NOTICE hat is clon as bean cy mae the date sid above. you appeared lta hea and re ol catstod wi is dein, yoo may appeal win "TWENTY DAYS fom fe date is dose wos mobs. Ay pt ho lao epee a the hear has ero apo eopen the case, Fre appcaion tbe grand Ne ty mst ppy wit 2 easonable tears estabic goad cause for fs aae appear READ IMPORTANT INFORMATION ON REVERSE SIDE, POR FAVOR TOME NOTA que eta destin ha sito ceidanent ena por conan en a ec gue aparece ara. Slused ass al aun y no est satsecho oon dec ‘sos puede ape eno dees VENTE DIAG opr dela fecha on qu xa dedon 6 env pr coo, Cus dels ats quo alo en ccrpamcea ia aude, tere ereco do par pra que recon su cso. Pare qv a apetcen sea acpi, a pare rca debe apicar dew dwn pao delemporaronabiy dee esblecer buena ‘2s porno haber compare ala udencia. LEA INFORMACION MPORTANTE AL REVERSO, DOCUMENTO IMPORTANTE. PUEDE OBTENER UNA TRADUCCION DEL MISMO LLAMANDO_ ‘AL 1-868-200-8124 (FUERA DEL ESTADO DE NUEVA YORK 1-877-358-5208) ISSUES: Loss of employment through misconduct. i AB 665-0 (10/06), ALJ. Case No.008-01175. RALPH REESE Page 2 The Department of Labor issued the initial determination disqualifying she claimant from receiving benefits effective November 10, 2008, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by the employer herein prior to November 10, 2008 cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing. A hearing was held at which testimony was taken. There was an appearance on behalf of the claimant. FINDINGS OF FACT: Ciaimant worked as a deli clerk from March 2006 to November 9, 2008. Employees receive a 20 per cent discount on food purchases. The empioyer's policy does not permit an employee lo take {food without paying for it. At 11:45 p.m. when claimant was closing down his section of the supermarket, there were 30 unsold sandwiches which were to be discarded to the trash per the employer's policy. Claimant put ‘one sandwich on the counter, in plain view, which he planned to eat before he left. The team leader saw the sandwich and discarded it. Claimant discarded the other 29 sandwiches. Ciaimant’s prior team leader gave claimant damaged food to be discarded ifhe wanted to eat it. Claimant had been transferred to the deli section in September 2008. Claimant had not received any prior warning during his employment for any similar incident. Claimant was dismissed from employment on November 9 and was told that he had attempted to take home a sandwich from the trash, without paying for it. OPINION: Pursuant to Labor Law § 593 (3), a claimant is disqualified from receiving benefits after having lost employment through misconduct in connection with that employment. Pursuant to Labor Law § 527, the wages paid in such employment cannot be used to establish a future claim for benefits. ‘The credible evidence establishes that claimant did not consume food without paying for it, not did claimant take food without authorization from the employer's premises. | note that claimant did not attempt to conceal his action, | also note the employer's prior permission to consume food which was to be discarded. Significantly, claimant had not received any prior waming during his employment for any similar incident. Under these circumstances, | find that claimant's actions, at most, constituted an isolated instance of podr judgment which does not rise to the level of misconduct. DECISION: The initial determination, disqualifying the claimant from receiving benefits effective November 10, 2008, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by the employer herein prior to November 10, 2008 cannot be used toward the establishment of a claim for benefits, is overruled. ; ‘The claimant is allowed benefits with respect to the issues decided herein. Jeitecan Sach Js! William Badillo