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

VICTOR E GONZALEZ, Employee

POTAWATOMI BINGO CASINO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09607565MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 26 of 2009, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The initial Benefit Computation (Form UCB-700), issued on July 5, 2009, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed March 18, 2010
gonzavi . usd : 115 : 5 MC 610

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked five years, most recently as a poker dealer, for the employer, a casino.

On November 15, 2008, the employee was issued a one-day disciplinary suspension for complaining about his breaks in front of customers. The accompanying report stated that the employee had been warned several times by his supervisor in prior months after engaging in this type of conduct.

On March 18, 2009, the employee was issued a final written warning for making derogatory comments to two supervisors, in front of customers, relating to working at an assigned table. The accompanying report indicated that the next step in the disciplinary process was termination, and stated that, "Victor should wait until he can speak to his shift manager off the gaming floor to discuss questions relating to decisions made by management."

Jeff Deuchler, the shift manager, testified without rebuttal that he counseled the employee many times not to complain about management decisions in front of customers.

On June 25, 2009, the shift manager conducted a pre-shift meeting with dealers at the poker podium, which was on the gaming floor and within hearing distance of customers.

The shift manager testified that, when he reminded the dealers of the requirement that they stay out from behind the counter, the employee, in front of coworkers and within hearing distance of customers, stated, "That's right, bro, this is Russia. We don't have any rights any more." The shift manager further testified that, when he responded to the employee that he should quit his whining and this was not a democracy, the employee stated, "Yeah, and now I have to go to break and then a dead spread and that's fucked up."

The employee testified that he did not make the Russia comment during the meeting, but afterward to a coworker and the shift manager overheard him. The employee denies that he said "that's fucked up" at the meeting. The employee testified instead that he simply asked the shift manager why his breaks were scheduled as they were.

The ALJ credited the shift manager's testimony and, particularly given the contemporaneous memo he created of the exchange (exhibit #1, page 2), there is no persuasive reason to overturn this credibility determination.

The employee was discharged on June 26, 2009.

The employer is in the hospitality business, and customer relations is paramount for success in such a business. Consequently, the employer's expectation that workers refrain from voicing dissatisfaction with management decisions, using profanity, or expressing any other negativity in front of customers, is, within the meaning of Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), a standard of behavior which the employer had the right to expect of the employee. See, Anderson v. Centurytel Service Group LLC, UI Hearing No. 03002970LX (LIRC Sept. 11, 2003.)

The employer reminded the employee of this expectation many times, and he was disciplined for violating it. The record shows the employee could have met with the shift manager or other supervisor in a private office to discuss his concerns, but, instead, he repeatedly did so in front of customers.

Discussing job dissatisfaction with receptive coworkers, and expressing disagreement in an appropriate manner and setting to management about one of its policies or practices, are commonly accepted forms of communication within an employment relationship. See, Provost v. M-W Marine, Inc., UI Hearing No. 06600549MW (LIRC April 28, 2006). However, the employee, even after warning, continued to express his job dissatisfaction and disagreement with management in a public rather than a private setting. The commission has previously held such actions to constitute misconduct, and it does so here. See, Merkel v. Learning Shop, UI Hearing No. 01609430MW (LIRC March 13, 2002), aff'd Merkel v. LIRC and Learning Shop, Case No. 02 CV 002912 (Wis. Cir. Ct. Milwaukee Co., Oct. 30, 2002)(email to others criticizing management, after warning, was misconduct); Anderson, supra. See, also, Simmons v. Jewel Food Stores, Inc., UI Hearing No. 01608998MW (LIRC March 27, 2002)(use of vulgarity in reference to customer which could be overheard by coworkers and customers, after warning, was misconduct).



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