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

BRADLEY D LAKOMY, Employee

BRINKS HOME SECURITY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600644


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 eligible for benefits, if otherwise qualified.

Dated and mailed June 13, 2002
lakombr . usd : 105 : 6  MC 692.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge that the employer did not establish misconduct connected with the employee's employment. When alleged misconduct occurs during off-duty hours, an employer must show that its rule prohibiting the conduct in question is reasonably related to the employer's interests. See,  Gregory v. Anderson, 14 Wis. 2d 130, 137, 109 N.W.2d 675 (1961). Nowhere in the hearing record, either in the employer's testimony or in the documents it put into evidence, is there any indication as to the purpose of the employer's rule. The employer thus did not establish that the rule was reasonably related to its legitimate interests.

Nor can the commission infer the possible reasons for the employer's rule. To do so would be conjectural on the commission's part, and the courts have specifically stated that such conjecture is beyond the commission's authority. See Nelson v. LIRC, Case No. 91-CV-181 (Calumet Cty. Cir. Ct. 8-13-92). For these reasons, the commission must conclude that the employer did not establish that the rule violated by the employee was reasonably related to the employer's interests.

The employer's representative in the petition for review, states that the employer's policy is designed to protect the public, that personal driving does reflect how employees drive the employer's trucks. This assertion is new, and the commission may not consider it. By operation of the administrative code, the commission's review of a case is a review of the record made before the administrative law judge. Parties are specifically instructed that subsequent review, such as by the commission or by the courts, is a review of the record made before the administrative law judge. Parties are further instructed that the hearing before the administrative law judge will be their only opportunity to present evidence in the case. The employer has indicated no reason why it was unable to present this information at the March 26, 2002 hearing.

For the above reasons, the commission does not believe the employer established that the rule in question was reasonably related to the employer's interests. The commission therefore has affirmed the decision.

cc: 
Brink's Home Security Inc.

Retail Specialists


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uploaded 2002/06/18