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

CARL A RUENGER, Employee

RED EYE BREWING CO LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09201712WU


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, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee began working in April of 2008 as a server and bartender for the employer, a restaurant and brewing business. His last day of work was March 3, 2009 (week 10), when he was discharged by the employer.

The issue to be decided in this case is whether the employee's discharge was for misconduct connected with his employment.

Toward the beginning of his shift on his last day of work, the employee was working as a bartender. A customer, who was an old friend of the employee's, ordered two drinks. The employee bought his friend the first beer. However, because he had no money at that time, the employee only charged his friend for one of the beers. The employee intended to pay for the beer with tips he would make during his shift. The employee worked until about 5:30 p.m. and forgot to pay for his friend's drink. The employee was discharged after he punched out for giving a customer a drink without obtaining payment for the drink.

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 employee in this case was negligent in failing to pay for the beer. However, the commission is convinced that the employee intended to pay for the beer but simply forgot. The employee bought his friend a beer early in his shift, so while he did not have the money to pay for the beer, he believed he would earn enough in tips to pay for the beer. While the employer did not allow workers to give drinks away, the employer did not present evidence of any clear policy for buying beers for customers or friends. The employee had never been warned about similar incidents in the past so this was an isolated incident. If the employee did not have sufficient money to pay for the beer immediately he should have either taken steps to ensure he would remember or he should not have brought his friend a drink at all. However, the commission is convinced that the employee did intend to pay for the beer and concludes that his failure to do so was an isolated instance of negligence that did not rise to the level of misconduct.

The commission therefore finds that in week 10 of 2009, the employee was discharged by the employer but that his discharge was not for misconduct connected with his 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, if otherwise qualified.

Dated and mailed February 5, 2010
ruengca . urr : 145 : 5 MC MC 630.14 MC 660

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ prior to reversing her decision. The ALJ noted that this was a close case and that she struggled with making a decision. The ALJ ultimately concluded that the employee should have been careful, if he did not immediately pay for the beer, to ensure that he remembered to take care of it before the end of the shift. The ALJ noted that the employer emphasized that it had to monitor this kind of behavior so that it could trust its bartenders not to either pocket cash or simply give away drinks. As such, the employee should have realized it was important that he ensure that he remember to pay for the beer. However, the commission reached a different credibility determination for the reasons stated in its decision.


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uploaded 2010/02/10