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

DAVID J BEILFUSS, Employe

CORPORATE INFORMATION LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97606023MD

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during nine years as an investigator for the employer, a corporate investigation business. His last day of work was August 4, 1997 (week 32).

The employer was initially located in Waukesha County, Wisconsin, the same metropolitan area as the employe. The employe conducted investigations throughout the state and was paid $14 per hour. He was generally paid mileage, 30 cents per mile, plus his hourly rate for the travel time, if the work was located outside of the Milwaukee/Waukesha county area.

In 1995, the employer moved its home office to Dane County. At that time, the employer met with the employe and an understanding was reached that customers would not be charged for mileage in Dane, Milwaukee or Waukesha counties. The employe continued to perform most of his investigations in the Milwaukee area. About a month before the end of his employment the employe performed work in Dane County. He was not paid mileage for the trip but was allowed to add a half hour a day to his time.

On August 5, 1997 (week 32), the employer notified the employe by telephone about a two day, 16-hour investigation in Dane county. He was informed that, since the client and job were in Dane county, he would not be paid mileage or expenses to commute to the job. The distance to the job site was approximately 73 miles. (The employe would stay with his brother-in-law and therefore would commute to Dane County on day one and return home on day two.) He initially accepted the assignment but called the employer back and refused it, saying that he could not afford to do it. The employer called back twice, pleading and badgering the employe to do the job but he still refused. The employer then indicated it was recalling two other assignments and his employment was terminated.

The employe had refused jobs in the past, one an inner-city assignment that he preferred not to do because he did not have a gun and another a job that involved camping. Both jobs were given to the other investigator. The other investigator was on lay-off status at the end of the employe's employment.

The initial issue to be decided is whether the employe voluntarily terminated his employment or was discharged. The second issue is whether the employe's separation from employment was for a reason permitting immediate benefit payment.

The commission finds that the employe was discharged by the employer. The employe was declining to do a specific assignment for the employer. The employe was not refusing all assignments and in fact had other assignments scheduled that he was willing to do. The employer had allowed him to refuse assignments in the past and had not considered that such refusals severed the employment relationship. The employe was not warned that refusing to do the assignment would end the employment relationship. Rather, when the employe declined the assignment the employer declared that it was taking back all work that had been assigned to the employe.

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 insurance 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' within the meaning of the statute."

The commission further finds that the employe's discharge was not for misconduct connected with his work. Again, the employe had refused assignments in the past and was not reprimanded and his employment did not end. While the other worker was on lay-off status at the end of the employe's employment, the employer could have provided the other worker employment. In addition, as indicated above, the employer pulled the other assignments and the employe had no reason to know or believe it would do so. The employe was not warned that his refusal to commute to Dane County was jeopardizing his employment. Finally, while it had been agreed that the employe would not be paid mileage for working in Dane County in the past the employe was compensated by being able to "pad" his time. No additional compensation was offered the employe for performing the job at issue.

The commission therefore finds that in week 32 of 1997, the employe did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04 (7)(a). The commission finds that in week 32 of 1997, the employe was discharged from his employment and not for misconduct connected with his work 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 benefits beginning in week 32 of 1997, if he is otherwise qualified.

Dated and mailed: February 25, 1998
beilfda.urr : 132 : 1 VL 1035 MC 640.12

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge found the employe to be a credible witness particularly with respect to the content of the August 4, 1997, telephone conversation with the employer. The commission agrees with such credibility determination but reaches a different legal conclusion when applying the law to the facts of the case.

Appeal to Circuit Court pending.

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