DENNIS J COOK, Employee

GOODYEAR TIRE & RUBBER CO, Employer

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 makes the following:

The employee worked one and one-half months as an automotive technician for the employer. His last day of work was July 24, 2001. The employer discharged him on July 25, 2001 (week 30).

On July 24, 2001, the employer's service manager directed the employee to change the fuel pump on a Chevy truck. The employee responded that he should not have to crawl on the ground to install a fuel pump. The service manager repeated the directive. The employee responded that he had not signed up for that kind of work. The service manager took the employee into the office and asked him if he had any physical limitations that prevented him from doing the work. The employee replied that he did not. The service manager asked the employee if he was prepared to accept the consequences of refusing to perform the requested work. The employee responded that there would be no consequences and that it did not matter. The service manager thereafter received authority to discharge the employee and did so.

The issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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' with in the meaning of the statute."

The employee maintained that he refused to change the fuel pump because he was not qualified to do so. The commission finds the employee's explanation to be unpersuasive. The commission credits the service manager's testimony as to the reasons the employee gave for refusing to perform the work. The employee did not advise the service manager that his refusal was based on his belief that he was not capable of performing the repair. The service manager, a master mechanic, credibly testified that the employee was qualified to perform the work. Indeed, it was the employee who had originally inspected the vehicle, diagnosed a problem with the fuel pump, and recommended its removal. Further, the employee could have attempted the repair and sought assistance from the employer if he experienced problems. The employee's repeated refusal to follow a reasonable work order was insubordinate and constituted an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 30 of 2001 the employee was discharged for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5), but that as of week 7 of 2002, at least seven weeks had elapsed since the end of the week of discharge and the employee had earned wages for work performed in covered employment equaling at least 14 times the benefit rate which would have been paid the employee had the discharge not occurred, within the meaning of that section.

The decision of the administrative law judge is reversed. Accordingly, wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount. Beginning in week 7 of 2002, the employee is eligible for benefits based on wages paid for work performed for other covered employers, if otherwise qualified. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed August 8, 2002
cookden . urr : 132 : 1 : MC 640.03

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did discuss witness credibility and demeanor with the ALJ who presided at the hearing. The ALJ credited the employee's testimony that he did not know how to perform the repair. The commission disagrees with the ALJ's credibility determination for reasons set forth above.

cc: Goodyear Tire & Rubber Co. (Brookfield, Wisconsin)

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uploaded 2002/08/23