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

BARBRA MONTY, Employee

HILLVIEW HEALTH CARE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03610839MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development 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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked seven years as the activity director for a nursing home. She was discharged on October 13, 2003 (week 42) after she was observed drinking beer while on duty during a work-related social activity.

On October 10, 2003, the employer held its annual Beer and Brat Fest for patients and their families. In prior years, workers were welcome to share beer and food during the Fest. On this occasion, the employer's news letter invited the working staff to join the Fest to dine but did not mention beer. Toward the end of the Fest, the employee joined a table of family members and was offered a beer. The employee was observed taking three drinks from the can. She then left to continue her duties as activity director. The employee was confronted the following day and admitted the conduct. She was unaware that this was forbidden. She was discharged for drinking alcohol at work.

The employer's work rules state that use of intoxicants on the employer's property is not permitted. The employer's administrator told the staff after the 2002 Fest and again in October, 2003 that no drinking was permitted on the premises.

The issue to be decided is whether the employee's discharge was for misconduct connected with her employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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' with in the meaning of the statute."

The employee testified that she was unaware that the employer had changed its practice regarding consuming alcohol at the Brat Fest event. The commission finds this testimony credible. The employee drank some beer in full view of the gathering without making any effort to conceal her conduct. Such behavior is inconsistent with an awareness that the employer no longer would permit drinking in this setting. The rule was a departure from past practice for this social occasion. The employee was unaware that the practice had been changed. Since a finding of misconduct is dependant on the employee's intent in committing a rule violation, the employee's unknowing violation of the employer's alcohol prohibition cannot constitute misconduct.

The commission therefore finds that in week 42 of 2003, the employee was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 42 of 2003, if she is otherwise qualified.

Dated and mailed May 28, 2004
montyba . urr : 178 :  MC 651.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge regarding credibility prior to deciding to reverse. The ALJ did not believe that the employee was unaware of the policy change regarding alcohol at the Beer and Brat Fest. The commission finds otherwise for the reasons stated in the decision.

cc: Tayyibah Sethi


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