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


CHRISTINE C PAULBECKI, Employe

TOWNE BARBERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00602694MW


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 employe is eligible for benefits as of week 9 of 2000, if otherwise qualified.

Dated and mailed August 22, 2000
paulbch.usd : 164 : 5 PC 717

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer argues that it was denied the right to legal representation at the hearing and was "forced" to represent itself without counsel. This argument fails. The employer was notified prior to the hearing that it could be represented by an attorney if it chose to and that, in the event it planned to do so, it should have its representative notify the hearing office as soon as possible. The employer opted not to seek legal representation. However, upon arriving at the hearing location and discovering that the employe had availed herself of the opportunity to be represented by an attorney, the employer requested a postponement so that it might secure counsel of its own. The parties were on notice that postponements would be granted only for exceptional reasons, and the employer's last-minute interest in securing legal representation did not constitute such a reason. Under the circumstances, the appeal tribunal's decision to deny the employer's request for a postponement and go forward with the hearing was completely appropriate.

In the petition the employer argues, as it did at the hearing, that the employe engaged in misconduct when she charged half the posted price for a service she provided. The appeal tribunal was not persuaded by this argument, nor is the commission. The evidence established that the employe charged a lower price to one of her former customers based upon an understanding with the employer that she was permitted to do so. Although the employer argues strenuously that it never authorized or approved the employe's actions in charging less to her former clients, its hearing testimony on this point was inconsistent, and the employe credibly testified that she was indeed given such permission. Moreover, the employer ought to have been aware that the employe was charging lower prices to some of her former clients and, if it had a problem with her actions, it should have directed her to desist and given her an opportunity to conform her conduct to its expectations.

Finally, the employer suggests that the employe had a pattern of deliberately undercharging for her services, as evidenced by the fact that on one occasion she charged a client for a $4.50 beard trim when, in fact, he should have been charged for an $11.50 haircut. Again, the employer's argument fails. The incident involving the beard trim stemmed from a misunderstanding on the employe's part and, after her error was brought to her attention, was not repeated. Nothing about that incident would have put the employe on notice that she could not charge one of her former clients a lower rate for a permanent, or that her actions in doing so would result in her discharge. Under all of the facts and circumstances, the commission agrees with the appeal tribunal that the employer failed in its burden of establishing misconduct. Accordingly, the appeal tribunal decision is affirmed.

cc: JEFF MEYER
LEGAL ACTION OF WISCONSIN

ATTORNEY MARK L OLSON
DAVIS & KUELTHAU SC

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with result reached by the majority herein and I dissent. The employe testified she was allowed to charge her old customers from Great Clips less so that they would come to the employer. Even if we credit her testimony it does not explain the two permanents for Mary and the trim for Roger. Roger was charged $4.50 for a haircut because the employe listed it as a beard trim which would have been $.4.50. She said she charged him $4.50 rather than the $11.50 because it took her about 10 minutes and they allowed 30 minutes for a haircut.

The case of Mary and the permanents is even more disturbing. The employer charged $50 and up for permanents. The employe had charged $39 for a short hair permanent and $49 for a long hair perm at Great Clips. She charged Mary $25 in August because she had a hair cut the week before the permanent and Mary left the shop with a wet head that day. She indicated it took her about 1 hour and forty minutes. On February 24, the employe again charged Mary $24 for a permanent but this time it took 3 hours and she gave her a shampoo, perm, haircut and dried her hair a bit.

The employe charged Mary less than the cheapest perm at Great Clips and obviously didn't consider how much time she spent working on Mary because she charged her the same for both perms even though the second one was more than an hour longer. The employe did not testify that she had only charged Mary $25 per perm at Great Clips.

I believe that the employe's conduct of charging half price on two perms and less than half price on a haircut was wilful and wanton disregard of the employer's interest. The employe and the employer split the price of the work. The employer got substantially less more for the work and the employer was also subject to customer dissatisfaction is the customer came in and was charged the regular shop prices. For these reason, I would reverse and find that the employe was discharged for misconduct connected with her employment.


_____________________________________
Pamela I. Anderson, Commissioner


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