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

RAYMOND W LYGHT, Employee

CORPORATE EXPRESS OFFICE PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02006002JF


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, an office supply company, for about a year as a delivery driver. His last day of work was February 25, 2002 (week 9).

The employer has a policy that provides, in relevant part: "The accumulation of 15 points or more in the preceding three years will prevent the applicant or employee from driving for [the employer]." The policy indicates that driving while intoxicated (hereinafter "DWI") is worth 15 points.

On December 4, 2001, the employee, who had an otherwise perfect driving record, was charged with a DWI based upon an incident that occurred while he was driving his own vehicle off-duty on the way home from a Packer game. The employee received a "pink slip" enabling him to drive until January 4, 2002, at which point he was issued an occupational license. The employee showed his supervisor the occupational license, but the supervisor told him that he could not drive anymore. The employee was assigned other work with the employer. On February 22, 2002, the employee was convicted of the DWI. His supervisor then told him he was discharged.

The first issue to be decided is whether the employee quit or was discharged.

At the hearing the employer took the position that the employee quit because he was unavailable for work. However, the employee had an occupational license valid for seven months, at which point his regular license would be reinstated, and could have continued driving for the employer had he been permitted to do so. It was the employer, not the employee, that made the decision to terminate the work relationship.

The next issue presented is whether the employee was discharged due to misconduct connected with his work.

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 did not specifically contend that the employee engaged in misconduct, and the evidence does not demonstrate this was the case. First, the employer's policy does not call for discharge, but states only that the accumulation of 15 points will prevent an employee from driving for the employer. The policy, therefore, did not put the employee on notice that conviction for the DWI would cost him his job. Further, the commission and courts have held that when the supposed misconduct occurs during off-duty hours, the employer must show that its rule prohibiting the conduct was reasonably related to the employer's interests. See, Lakomy v. Brinks Home Security Inc. (LIRC, June 13, 2002), and cases cited therein. The commission cannot infer the possible reasons for the employer's rule, and the courts have specifically stated that to do so would be to engage in conjecture beyond the commission's authority. Id. Here, the employer did not introduce any evidence demonstrating a connection between the employee's off-duty conduct and the job. Consequently, even if the employer's rules did provide for discharge based upon the employee's off-duty conduct, the commission would be unable to conclude based on this record that the rule was reasonably related to the employee's employment.

The commission, therefore, finds that in week 9 of 2002, the employee 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 employee is eligible for benefits beginning in week 9 of 2002, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed February 18, 2003
lyghtra . urr : 164 : 1  MC 618  MC 692.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The commission does not disagree with any credibility determination made by the administrative law judge, but has arrived at a different legal conclusion when applying the law to essentially the same set of facts as that found by the appeal tribunal.


cc: 
Corporate Express (Wauwatosa, Wisconsin)
Continental Consultants


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uploaded 2003/03/03