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


REBECCA M BRUNETTE, Employe

MENOMINEE TRIBAL GAMING CORP, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97400840GB


On March 15, 1997, the Department of Workforce Development (department) issued an initial determination finding that the employe's disciplinary suspension was with good cause within the meaning of Wis. Stat. § 108.04 (6). The employe timely appealed and a hearing was scheduled before an administrative law judge noticing only the issue noted above for hearing.

A hearing was held on April 23, 1997 before an administrative law judge. At the close of testimony, the administrative law judge asked the parties if they objected to her taking notice of whether the employe's employment was suspended because her license had been suspended, revoked or not renewed due to the employe's fault, within the meaning of Wis. Stat. § 108.04 (1)(f). Neither party objected.

On April 24, 1997 the administrative law judge issued her appeal tribunal decision, modifying the department's initial determination to conform to the new issue, and as modified, reversing the initial determination, finding that the employe's employment was suspended because of the loss of license required by law but not due to the employe's own fault. The employer timely petitioned the commission for review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

The employe worked approximately two years, most recently as a most valuable player (MVP) hostess for the employer, a casino. The employe's last day of work was February 27, 1997 (week 9). As a most valuable player hostess for the employer, the employe was required by law to have a gaming license. In addition, the employer's policy states that all employes must have a valid gaming license. The employer's policy also provides that if the gaming commission suspends an employe's license, the employe's employment with the employer is also suspended.

On February 26, 1997 the tribal gaming commission issued a letter informing the employe that her license was suspended effective immediately. The letter stated that there was an inquiry regarding her alleged inappropriate misuse of the casino's most valuable player system (MVP system). The letter went on to state that this misuse of the MVP system took place in 1996 and 1997 and that an initial hearing would be scheduled for the employe as soon as the inquiry was completed. The following day, the employe was informed by the employer her employment was suspended because her gaming license had been suspended.

Although this case was initially decided under Wis. Stat. § 108.04 (6), the disciplinary suspension statute, the administrative law judge on her own motion, with agreement by both parties, converted the issue to a suspension by loss of license analysis under Wis. Stat. § 108.04 (1)(f). That statute provides the following:

"If an employe is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employe's employment is suspended or terminated because the employe's license has been suspended, revoked, or not renewed due to the employe's fault, the employe is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed whichever occurs first."

Thus, the inquiry here is whether the employe's suspension due to the loss of license was due to the employe's own fault. The administrative law judge correctly noted that the burden is on the employer to establish that the suspension of the gaming license is due to the employe's own fault. The administrative law judge reasoned that since none of the gaming commission members who had been involved in the employe's license suspension testified at the unemployment compensation hearing, the employer failed to produce sufficient firsthand knowledge regarding the reason for the employe's gaming license suspension. However, the commission believes the record supports a reversal as a matter of law.

During the employe's examination by the administrative law judge, the employe admitted that the employer had a rule against transferring points accumulated under the MVP system, but she did not know why the rule existed. The employe also admitted she in fact had transferred MVP points she had accumulated to her son's account, but believed that since she had accumulated these points by gambling on her own time she had earned the cash and/or merchandise and therefore was entitled to transfer the points. In essence the employe did not see anything wrong with her transfer, although she knew it violated the employer's rule. Equally important, the employe did not verify the transfer with management prior to doing it even though she admitted she was not clear about the transfer. Instead of asking management she asked a co-worker. The employe also admitted at the hearing that she did not appeal the suspension of her license to the gaming commission. She believed that the gaming commission would get back to her after the 30 days it said it would take to investigate the matter and the "next thing she knew she was discharged because her license had not been approved."

Based on these admissions, there is sufficient evidence in the record to support the conclusion that the suspended license was, in part, due to the employe's fault. After all the employe admitted transferring the points to her son's account in apparent violation of the employer's rule without prior management approval. Furthermore, the employe failed to challenge her license suspension through the gaming commission's normal procedure or seek reinstatement of her license. Thus, despite the employer's limited evidentiary production, employe fault was established.

Therefore, the commission finds that in week 9 of 1997, the employe's employment was suspended because of the loss of a license required by law due to the employe's own fault within the meaning of Wis. Stat. § 108.04 (1)(f).

The commission further finds that the employe was paid benefits amounting to a total of $472.00, to which she is not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 9 of 1997 and for a period of up to five weeks thereafter, or until the license is reissued or renewed, whichever occurs first. Thereafter, benefits are allowed, if there are other employers in the base period and the employe is otherwise qualified. The employe is required to repay the sum of $472.00 to the Unemployment Reserve Fund.

Dated and mailed September 5, 1997
brunere.urr : 135 : 1  AA 130

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge and reverses the appeal tribunal decision as a matter of law. The commission reaches a different legal conclusion upon essentially the same set of facts as found by the administrative law judge. Consequently, a credibility conference was not necessary under Transamerica Ins. Co. V. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). For the reasons set forth in the commission decision, the commission concludes that the employe's loss of license was due to the employe's fault within the meaning of Wis. Stat. § 108.04 (1)(f).

cc: ATTORNEY THOMAS J PARINS JR
PARINS LAW FIRM SC


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