Wis.LIRC UC Decision: Miklos - October 6, 1999 - MC 657 - Duties not performed; MC 660.01 - Negligence, Unsatisfactory/slow work - General - number of mistakes insufficient to constitute misconduct

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

FRANK T MIKLOS, Employe

LAC DU FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200850RH

On May 14, 1999, the Department of Workforce Development issued an initial determination which held that the employe's discharge had not been for misconduct connected with his employment. The employer filed a timely request for hearing, and hearing was held on June 28, 1999 in Rhinelander, Wisconsin before a department administrative law judge. On July 1, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately three years as a blackjack dealer for the employer, a casino. The employer discharged him on April 29, 1999 (week 18), for dealing errors which occurred on April 13, 17, 20, and 23. The commission concludes that the failures the employer established, do not rise to the level of misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employer discharged the employe for a total of nine failures, two of which occurred on April 17. The employer's evidence as to the first of these two failures is that it appeared the employe told a customer to take a hit. The evidence regarding the other failure is that it appeared the employe did not pay out the appropriate dollar amount after a customer won the hand. This is not competent evidence, so the commission does not believe it may contribute to a finding of misconduct by the employe.

Of the three failures by the employe on April 13, two involve players who placed what is called an insurance bet (to protect themselves from the dealer's having blackjack (21) with his or her cards). These are at most de minimus failures which, again, should not contribute to a finding of misconduct by the employe.

At this point, there are five failures left to form the basis for a finding of misconduct for unemployment insurance purposes. The employer testified that a primary failure by the employe was his allowing, on April 20, a player to "double down" after splitting a pair of cards. At the employer's six-deck shoe tables, customers are allowed to double down after splitting cards, but on the employer's pitch tables customers are not (but the dealer can allow a double down if the customer has a ten or eleven). The employer asserted that in no case is a customer allowed to double down after having received three cards, and the employe allowed that practice twice on April 20. (1 )

The employe's remaining failures are as follows. On April 13, the employe allowed a player with 20 to beat the employe's hand of 21. Approximately three hours later on the same evening, the employe allowed a player with 15 to beat his hand of 18. On April 23, the employe paid out $50 for a blackjack (instead of $37.50). Finally, the employe on one occasion allowed a player to place a bet after another player had already received his or her first card, in contravention of the employer's rule prohibiting a player from placing a bet once the first card of the hand has been dealt.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. It is an employer's burden to establish misconduct by an employe and, in this case, the employer has not done so. There is no question but that the employer has established failures in procedure by the employe. The employer has not established that they were intentional, however, or so frequent as to constitute the gross negligence which is tantamount to intentional conduct. The employe worked full time as a blackjack dealer for the employer and, on at least one of the above-described occasions, the employe was dealing to a full table.

The commission therefore finds that, in week 18 of 1999, the employe was discharged but not for misconduct connected with his employment, 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 unemployment insurance if he is otherwise qualified.

Dated and mailed October 6, 1999
miklofr.urr : 105 : 2 MC 657 MC 660.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The administrative law judge, in finding misconduct, reasoned that the number of errors the employe committed could not be due to lack of training or expertise. Indeed, during the credibility conference, the administrative law judge indicated that the employe presented himself as a capable and sophisticated blackjack dealer. Because of this, the administrative law judge did not credit the employe's testimony in response to the specific accusations by the employer. That testimony was to the effect that he did not remember the failures alleged, but that he is human and they could have happened. First, the commission does not believe the number of errors by the employe was as significant as the administrative law judge believed. As indicated above, the employer's evidence as to two of the alleged failures was deficient, and two other failures by the employe were, in the commission's opinion, de minimus. Second, the employe could hardly be expected to have remembered the hands in which he committed the errors in dealing. He worked full time for the employer which, of necessity, involved dealing hundreds, if not thousands of hands during the time period in question. This renders speculative the dissent's assertion that the employe intentionally failed to follow the proper procedures on the hands in question. Indeed, when the employer first told the employe he was to be terminated, the employer would not even tell the employe the charges against him, other than that the employe had violated the employer's blackjack procedures. Given these factors, the employe's inability to specifically respond to the allegations against him is unremarkable and is not, in the commission's opinion, sufficient basis to disbelieve the employe's assertions of human error.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe's conduct was misconduct.

The employe allowed a player to bet after the first player already had a card on April 20. A player with a pair of 2's was allowed to split them twice. A player is not allowed to double down on the third card regardless of whether he was playing on a six-deck shoe table or a pitch table.

The violations that the employe was fired for, were things the employe would have known after dealing for three years. The rules are strict in what a dealer may and may not do. The employe violated those rules in the short period of time the employer monitored his play. The administrative law judge believed that the employe was a very sophisticated and capable blackjack dealer. I agree with that assessment. The employe knew the rules and decided not to apply them all the time.

For these reasons, I would affirm the appeal tribunal decision.

/s/ Pamela I. Anderson, Commissioner

cc: LAKE OF THE TORCHES CASINO

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Footnotes:

(1)( Back ) The employer's dealer rules state that customers may double down on any first two cards; the rules also state that, since a customer can double down on his or her first two cards, a customer may elect to double down on a total of 12 or more. The rules also specifically state that a customer may double down after splitting a pair.