(dissenting). This writer is of the opinion that the referee’s decision and the board of review’s affirmance are "supported by competent, material, and substantial evidence on the whole record,” MCL 421.38; MSA 17.540, and that the circuit court erred in reversing that decision.
On July 20, 1982, claimant Tuck and another employee were making room for new stock in a display cooler at Ashcraft’s Market in Gladwin. Jim McMore, the store manager, told Tuck and *591another employee to make the room. Normally, the meat manager would have given the instructions, but the meat manager was absent on the twentieth.
Tuck testified that he noticed that some fish in the display cooler were thawed and smelled. Tuck removed two cartons of fish from the display cooler, one of which contained fifteen to seventeen individually wrapped packages of fish. One carton was estimated to be worth $45 to $55. Tuck stated that the normal procedure for removing unsaleable meat items was to place them outside the back door in a bone barrel, from which they would be taken by a chemical company or by individuals for use as bear bait.
Tuck removed one of the cartons by first placing the carton in the meat room and later transferring the carton from the meat room to his truck through the back door of the market. The other carton was removed by first placing the carton in the meat room, then returning the carton to the display cooler, then, while Tuck was at the market shopping after work that evening, transferring the carton from the display cooler to his truck through the back door of the market. Although the normal policy would have been to get the manager’s permission before taking unsaleable items, Tuck testified that he assumed that he could deem the fish unsaleable in the manager’s absence.
Bell Jesse, manager of Ashcraft’s, testified that it was not within Tuck’s scope of authority to determine whether inventory was unsaleable, that only the store manager or the department manager had such authority, and that the date stamped on the packages was the packaging date, not the expiration date. Jesse also testified that it was strictly against company rules to remove inventory out the back door of the market, and that the back *592door was to be used only for unloading delivery trucks and removing garbage. The rule was required for security reasons and the company handbook prohibited use of the back door for other purposes. The handbook prescribed the appropriate method for removing items from the store. Tuck acknowledged having read the handbook. Tuck had been informed that his predecessor had been fired for unauthorized use of the back door.
Bill Patch, the meat division supervisor for all of Ashcraft’s supermarkets, was in the Gladwin store on July 20. When he entered the store, he noticed Tuck carrying a box of fish from the display cooler to the meat room. Later, he noticed a box of fish in Tuck’s truck. Still later, he noticed Tuck carrying a box of fish from the meat room back to the display cooler, which Patch thought was unusual. When Patch returned the next day, he noticed that the box of fish that Tuck had returned to the display cooler the previous day was missing. Patch’s investigation led to Tuck’s admission that he had taken the two boxes of fish, and to Tuck’s dismissal.
The question raised by this appeal is whether Tuck was properly denied unemployment benefits for misconduct connected with his work. The applicable statute was MCL 421.69(2)(b); MSA 17.569(19)(2)(b), currently MCL 429.21(1)(b); MSA 17.531(1)(b), which provided:
(1) An individual shall be disqualified for benefits, in all cases in which he or she:
(b) Has been discharged for misconduct connected with his or her work ....
The majority opinion sets forth the Carter definition of misconduct and the referee’s findings of *593misconduct. However, the majority agrees with the trial court that Tuck’s action did not rise to the level of statutory misconduct as was found by the referee and the board of review. The majority does not dispute that Tuck’s act breached a standard of behavior which the employer had a right to expect, but rests its opinion on the conclusion that the act was not wilful. The majority concludes that:
Because a manager was not there, claimant made an error of judgment in his determination that he had the authority to decide whether or not to scrap the fish. He made the decision and bypassed the scrap barrel procedure. Claimant breached rules by not asking the meat manager for permission (and thus concluding that the thawed fish was scrap) and by removing the fish by the back door.
We believe that, while claimant’s conduct may have been negligent, he did not wilfully and wantonly disregard his employer’s interest.
This conclusion ignores the fact that, although the meat manager was absent, the store manager and the regional meat manager were present. Although it is not clear from the record whether the regional manager had the authority to deem inventory unsaleable, it is clear that the store manager did. It may certainly be inferred that the meat manager’s absence was not the only reason that Tuck failed to get permission to remove the fish.
Beyond the failure to obtain proper permission, Tuck’s action is characterized by the majority as simply bypassing the scrap barrel in an otherwise normal procedure for removing scrap. Indeed, the insinuation is that it would have been rather senseless for Tuck to have put the fish in the scrap *594barrel, only to immediately remove it and place it in his truck.
However, while Tuck’s removal of the first package may have been relatively normal (except for the failure to get prior permission and the bypassing of the scrap barrel), the removal of the second package was, as Patch testified, unusual. Tuck took the second package first to the meat room, then, after Patch’s arrival, back to the display cooler. Then he returned after his shift, and after Patch’s absence, to remove the second package from the display cooler. Such conduct supports the conclusion that Tuck purposefully avoided removing the fish in Patch’s presence, and that Tuck returned at a time when he could remove the fish undetected.
Such conduct is evidence of a wilful disregard of company rules, and the referee found misconduct based on that evidence:
Claimant acted at his peril in retaining control over merchandise removed from freezer to cooler until he could transport it away without seeking the review of either the department manager or store manager.
This writer is of the opinion that the record supports a finding of wilful behavior, and, therefore, that the referee’s decision is “supported by competent, material, and substantial evidence on the whole record,” MCL 421.38; MSA 17.540. Consequently, this writer would vote to reverse the lower court and reinstate the decision of the referee and board of review.