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

KIA S UPHOFF, Employe

TRAVEL CENTERS OF AMERICA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003561MD

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 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 seven months as a server for the employer, a truck stop restaurant. Her last day of work was July 31, 1998 (week 31), when the employer discharged her from her employment.

The employer's cash control policies provide for discipline when a worker's drawer is more than $2.00 short or over. Each server has his or her own drawer, and the employer's registers automatically calculate the change due. During the course of the employe's employment, she received numerous warnings for failing to balance her drawer within the limits established by the employer. Throughout her employment, the employe's drawer balanced no more than four times. She was short as many times as she was over. On each occasion, she was advised to be more careful and count change back to customers. On July 21, she received a final warning after her drawer was over by about five dollars. On July 30, the employe's drawer was over by about $6.00. She was unable to offer the employer any explanation. On July 31 (week 31), the employer discharged her for repeated violations of its cash control policies.

The issue to be decided is whether the employe's discharge was for actions constituting 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 insurance 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' within the meaning of the statute."

The commission finds that the employer failed to establish that the employe's failures in performance rose to the level of misconduct connected with her work. This is not a case where an employe was shown to be capable of meeting the employer's expectations by, for example, periods of compliance. The employe never performed to the employer's standards. The employer did not establish that she was able to meet its expectations.

The commission therefore finds that in week 31 of 1998 the employe 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 employe is eligible for benefits beginning in week 31 of 1998, if she is otherwise qualified.

Dated and mailed: December 29, 1998
uphofki.urr : 132 : 3  MC 660.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge focused on the fact that the employe could offer no explanation for her actions. However, the commission is persuaded by the employe's consistent inability to meet the employer's standards and, in particular, her almost total inability to balance her drawer. The employe has never met the employer's expectations and the employer did not establish that she was able to do so. For these reasons, the commission has reversed the decision of the administrative law judge.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employer allowed the employe to be less than perfect in balancing the register because it allowed for a $2.00 over or under variance. When the employe was more than $2.00 over or under she was written up by the employer. In the seven months the employe worked for the employer she was written up less than 15 times. The other days she was able to perform her work according to the employer's reasonable expectations. The reasonable inference is that the employe could meet the employer's expectations if she was careful.

I agree with the administrative law judge that the employe had the ability to perform the job and that her carelessness was to such a level as to be intentional misconduct. For these reasons, I would affirm the administrative law judge's decision.

Pamela I. Anderson, Commissioner

cc: MADISON TRAVEL CENTER

WRAY VASSAR, HEARING SPECIALIST
CONTINENTAL INVESTIGATIONS & SECURITY LTD

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