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


ARNE H ANDERSEN, Employe

FASGAS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200510RH


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a gas station and convenience store, for two years as store manager. Prior to his work for the employer, he had worked for the employer's previous owner for 25 years. His last day of work was February 18, 1999 (week 8).

In February of 1999 the employe hired a 16-year old sales clerk to work in the store one shift a week. When the 16-year old was scheduled to work alone, the employe posted signs on the cooler doors and cash register indicating that there were to be no beer sales at that time.

On February 18, 1999, about a week after the employe hired the worker in question, the district manager learned of the situation and told the employe that a 16-year old could not sell beer. The employe responded that he had posted signs indicating that no beer would be sold while the 16-year old was working, to which the owner responded, "Well, he can't sell cigarettes either. You're fired."

The issue to be decided is whether the employe's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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 employer maintained that the employe's actions in hiring a 16-year old amounted to misconduct because this employe would be selling cigarettes and beer in violation of state law. The employer's argument lacks merit. Wisconsin law does not prohibit minors from selling cigarettes, (1) and the undisputed evidence indicates that the employe acted consistently with the employer's interests by taking steps to ensure the worker in question would not be selling any beer. Further, while the employer indicated it has an unwritten policy that workers must be 18 years or older, it failed to explain how this policy was communicated to the employe, and the employe indicated that he was unaware of any such policy. The employe hired the worker in question in order to fill legitimate staffing needs and, in the absence of any reason to believe that he did so in knowing violation of any work rule or law, the commission sees no basis to conclude that his actions were undertaken in wilful and substantial disregard for the employer's interests.

The employer also argued that cigarette and beer sales comprise a significant portion of its business, and that the employe's actions amounted to misconduct because they had the effect of restricting its ability to sell beer during one shift a week. However, it is undisputed that the employer does not sell much beer on Sundays, when the worker in question was scheduled to work. More importantly, while the employe may have exhibited poor judgment in hiring an individual who would be unable to sell beer, there is no basis to conclude that his actions were undertaken in a deliberate attempt to deprive the employer of revenues. Overall, the commission believes that the actions which resulted in the employe's discharge--while perhaps ill-considered, and clearly unsatisfactory to the employer--did not evince misconduct, as that term has been defined in the Boynton Cab case, cited above.

The commission, therefore, finds that in week 8 of 1999, the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 8 of 1999, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed June 25, 1999
anderar.urr : 164 : 6  MC 686

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility. Rather, the commission arrives at a different legal conclusion when applying the law to essentially the same set of facts as that found by the appeal tribunal.

cc:
FASGAS INC
GREGORY GALLYS

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe hired a sixteen year old to work in gas and convenience store that sold beer and cigarettes. In fact, 62% of told sales are cigarettes and 24% of sales are for beer. The employe put up signs says no beer sales when the employe worked. The employe was scheduled to work alone. There was no adult supervision when the employe worked by himself. The law does not allow a minor to buy beer or cigarettes.

§ 103.65 of the statutes provides "General standards for employment of minors. (1) A minor shall not be employed or permitted to work at any employment or in any place of employment dangerous or prejudicial to the life, health, safety, or welfare or the minor or where the employment of the minor may be dangerous or prejudicial to the life, health, safety or welfare of such minor." I believe that allowing a minor to work alone in a place that has beer and cigarettes that are available is in violation of this law. Even if the minor is not tempted by the beer or cigarettes, a minor is not in a position to safely enforce the law. He will not easily be able to check ages of peers in selling cigarettes. Also not selling beer when he works is a disregard of the employer's interest because beer accounts for almost 25% of sales.

The employe said he hired the sixteen year old because "we needed to hire someone and I knew a 16 year old needed a job." The employer acted as soon as they found out about the age of the new hire. I believe that this decision to hire and schedule the sixteen year old put the employer in serious jeopardy for fines from cigarette sales to underage customers.

For these reasons, I believe that the employe was fired for willful and wanton disregard of the employer's interests and thus was misconduct for unemployment purposes. I agree with the administrative law judge and would deny unemployment benefits.


___________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) To the contrary, the Wisconsin statutes specifically provide that, "A person under 18 years of age may purchase or possess cigarettes or tobacco products for the sole purpose of resale in the course of employment during his or her working hours if employed by a retailer licensed under s. 134.65(1)." Wis. Stat. § 938.983(3). While the dissenting commissioner suggests that a minor would be unable to avoid selling cigarettes to other minors, thereby putting the employer in jeopardy of incurring fines, the employer has never suggested that this was the case and the record contains no evidence in support of this theory. Moreover, where the legislature specifically allows minors to sell cigarettes, it apparently presumes that they are capable of doing so within the confines of the law.