Hoffmann v. Lyon Metal Products, Inc.

• Decision Date: 13 August 1991
• Docket Number: No. 2-90-1177,2-90-1177
• Parties: , 160 Ill.Dec. 384 Donald C. HOFFMANN, Sr., Plaintiff-Appellee, v. LYON METAL PRODUCTS, INC., Defendant-Appellant (Department of Employment Security, Board of Review et al.,
• Court: United States Appellate Court of Illinois

Page 514

577 N.E.2d 514

217 Ill.App.3d 490, 160 Ill.Dec. 384

Donald C. HOFFMANN, Sr., Plaintiff-Appellee, v. LYON METAL PRODUCTS, INC., Defendant-Appellant (Department of Employment Security, Board of Review et al.,

No. 2-90-1177.

Appellate Court of Illinois,

Second District.

Aug. 13, 1991.

Katherine M. Moran, Drendel, Schanlaber, Horwitz, Tatnall, Geneva, Bradford L. Livingston, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, for Lyon Metal Products, Inc.

J. Timothy Loats, Law Offices of J. Timothy Loats, Lisa M. Nyuli, Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., Aurora, Corinne E. McAlpine, Asst. Atty. Gen., Chicago, for Donald C. Hoffmann.

Justice BOWMAN delivered the opinion of the court:

Defendant, Lyon Metal Products, Inc., appeals from the judgment of the circuit court of Kane County which reversed the decision of the Board of Review, Department of Labor (the Board), which found plaintiff, Donald C. Hoffmann, Sr., ineligible for unemployment insurance benefits. The sole issue raised by defendant on appeal is whether the trial court erred in reversing the Board's decision.

Plaintiff was discharged from his position as a material handler for defendant on February 8, 1988, and applied for unemployment insurance benefits. The claims adjudicator determined that plaintiff was ineligible for benefits, finding that plaintiff attempted to remove company property without written authorization. The claims adjudicator noted that this constituted a violation of a known and reasonable company rule and concluded that plaintiff was discharged for misconduct connected with the work and was therefore ineligible pursuant to section 602 (A) of "An Act in relation to a system of unemployment insurance" (Act) (Ill.Rev.Stat.1989, ch. 48, par. 432 (A)). Plaintiff's request for reconsideration of this decision was denied. He then requested a hearing before a referee.

At the hearing, the referee reviewed plaintiff's statement to the claims adjudicator. The adjudicator wrote that plaintiff had been employed by defendant since January 1966. Plaintiff noted that this was a period of 22 years. The statement also stated that, on February 6, 1988, a Saturday, plaintiff put an extension cord in a paper sack. He was going to borrow the cord over the weekend. This was not an unusual practice. He was stopped by someone from personnel who asked what was in the sack. Plaintiff showed him and was told to put it back as plaintiff did not have written permission. Plaintiff put it back. When plaintiff reported for work on Monday, February 8, 1988, he was told that his intent was to steal the cord, and he was released.

Plaintiff testified at the hearing that, when he was stopped on February 6, he was asked if he had a "scrap pass" for the cord, and he explained that it was not scrap, that he was just borrowing it for the weekend. He testified that he was not intending to steal anything. He also stated that he had previously obtained passes to take home scrap materials that he was keeping to use around the garage. He had not obtained a pass to borrow items. He had previously borrowed a wheel puller and rethreaders which he brought back the following work day. He had never borrowed anything without returning it. Plaintiff testified that he was not aware that there had ever been a pass system for borrowing anything. Plaintiff stated that he needed the cord to work in his garage and that he did not think that there was any harm in borrowing the extension cord because he was bringing it back on Monday.

Plaintiff also testified that he had never been warned prior to this incident not to take things home and bring them back. He stated that supervisors at the company may have been aware that he had previously borrowed items because "[t]here is [sic] a lot of people borrowing an awful lot down there."

During cross-examination, a paragraph from page 27 of defendant's employee handbook, entitled "Your Job at Lyon," was read into the record. It stated:

"Package Passes

In order to protect company property and avoid embarrassment for the employee, no employee may carry any package out of the plant, except his lunch box or work clothes, without a properly signed package pass. Your supervisor will explain the procedure for obtaining this pass."

Plaintiff's attorney stipulated that plaintiff received the handbook and was aware of the rules. Plaintiff stated that he guessed that he would assume that the language of the rule applied to something that was company property which he intended to borrow. He admitted that he did not notify a supervisor that he intended to borrow the extension cord. He also stated, however, that when he was confronted on the date of his discharge, he did not believe that he had to have a pass to take the extension cord home.

Plaintiff's wife testified that she regularly picked plaintiff up from work and picked him up on February 6, 1988. She went to a parking lot on the south side of the building. She waited for plaintiff approximately 10 or 12 minutes. She usually picked him up at a different location, but he had called and asked her to pick him up there. She had picked him up there before.

Plaintiff then stated that he asked his wife to pick him up at that location because that was where the other employees working on Saturday were parked and he generally walked out "with the guys." Plaintiff stated that there was no guard stationed at that door and that there was a guard stationed at the door he normally used. Plaintiff also stated that, on previous occasions when he had borrowed company property, he walked past the guard and was not stopped when he left with the property. He had previously taken an extension cord in a sack past the guard.

Donald Mullner, manager of plant engineering and maintenance, testified that it was his understanding through a tip from Dennis Hess, plant manager, that plaintiff was going to remove some unauthorized materials. Hess stated that the tip came from one of plaintiff's co-workers. The co-worker was not identified. Mullner and Bill Kozlowski, project engineer, approached plaintiff as he walked to his car. Plaintiff's wife was in the car, and the car was running. Mullner asked plaintiff what he had in the bag, and plaintiff told him that it was an extension cord. Mullner asked plaintiff if he had a scrap pass for it, and plaintiff said "no."

Mullner further testified:

"He said it wasn't scrap [sic ] he was borrowing it for the week-end, and would bring it back on Monday. I told him he needed a scrap pass for anything he borrowed.

He said he wasn't aware of that. I asked him to see the extension cord. He showed it to me. Said he was going to use it in his garage. I told him that he should use a scrap pass to borrow company material."

Mullner then stated that plaintiff returned the cord and he informed plaintiff that he would report this to the plant manager.

Donald Anderson, the vice-president in charge of human relations for defendant, testified that plaintiff was discharged for "[i]mproper disobedience of company rules, and not obtaining a package pass. Which has to be interpreted as intending to steal." Anderson testified that the package pass policy was intended to protect company property. He stated that, as far as he knew, the only exceptions to the policy were lunch boxes or work clothes. He testified that a package pass was the same thing as a scrap pass.

Hess testified that there was no company rule or policy which would prevent an employee from borrowing an item of property "as long as he obtains a package pass to remove it from the company." He testified that the package pass policy applied to borrowed items. He stated that they needed to know where all of their equipment was at all times. Hess and Richard Van Wagoner, second shift superintendent, testified that they had approved package passes for borrowed material quite a few times. To the best of Van Wagoner's recollection, plaintiff had never requested a package pass from him for borrowed materials. Hess stated that plaintiff had come to him to obtain package passes for scrap material.

Hess testified that he had a meeting with plaintiff after the incident, and plaintiff acknowledged that he was aware of the package pass procedure. Plaintiff indicated that he had used the procedure in the past, but had not used it for materials he was borrowing. Plaintiff had used the procedure that Saturday for another employee. Terry Vance, assistant area supervisor, testified that plaintiff had requested a pass for another employee on that day, which Vance denied. The other employee wanted to keep the property requested.

Plaintiff's supervisor did not testify, and there was no testimony that plaintiff had been informed by any of defendant's witnesses that a package pass was necessary for borrowed materials. During closing argument, Anderson argued:

"Here we have an individual who as far as we were concerned, was trying to circumvent the rules with respect to package passes, which could also lead to theft of property.

And we have had a lot of that around the plant, and we are trying to stop it."

The referee issued his decision on May 16, 1988. He determined that there "was no showing of a deliberate and willful repeated violation in spite of a warning or explicit instruction." He also noted that the "rule is not unambiguous and appears to have been ignored in practice" and concluded that plaintiff was not discharged for misconduct connected with the work.

Defendant appealed this decision to the Board. The Board issued its decision on August 19, 1988. After plaintiff was given notice of the appeal and filed written argument with the Board, an essentially identical reconsidered decision was issued on March 15, 1990, in which the Board reversed the decision of the referee. The Board noted that the extension cord was concealed in a bag, that plaintiff left through a different door and walked right to his...