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

TAMMY M MITCHELL, Employee

METRO CASTER LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604157MW


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 ineligible for benefits beginning in week 21 of 2006, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed November 3, 2006
mitchta . usd : 115 : 1  MC 640.03  MC 626

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The first question is whether the separation was a quit or a discharge.

A separation resulting from insubordination, including the failure to follow an employer directive presented, as here, as an ultimatum, has generally been treated as a discharge. See, e.g., Griffin v. Bally Total Fitness Corp. UI Hearing No. 98608129MW (LIRC March 17, 1999); Clemons v. Kids Talk Daycare, UI Hearing No. 97606218MW (LIRC Feb. 10, 1998); White v. ARA Cory Refreshment Services, UI Hearing No. 03600041MW (LIRC May 9, 2003); Mickey v. AmericInn Lodge & Suites, UI Hearing No. 06400242AP (LIRC May 12, 2006).

It is true that the employee had an opportunity to maintain the employment relationship by cutting up the picnic table. However, any worker whose separation results from her intentional actions has the opportunity to maintain the employment relationship by simply not engaging in such actions, whether such actions are attendance infractions, theft, or, as here, refusal to comply with an employer directive. A discharge is not converted to a quit simply because the employer issues an ultimatum. See, Cotton v. Crown Services, UI Hearing No. 03607152MW (LIRC April 15, 2004).

The separation here was a discharge.

The next question then is whether this discharge was for misconduct. Generally, refusal to follow a reasonable employer directive constitutes misconduct unless the employee has a defensible reason for doing so.

Here, the employer's directive was reasonable, and the employee's reason for not performing it not reasonably defensible. Even though the employee argues that cutting up picnic tables was not part of her job description, it is an employer's prerogative to determine what duties need to be performed and to assign these duties to individual workers. Here, the employee apparently had experience using a power saw to cut up casters, and possessed the tools and skill necessary to cut up the picnic table. It was within the owner's discretion, not hers, to determine whether employer resources would be devoted to that task. It should be noted that there is no evidence in the record delineating the duties actually specified in the employee's job description, or even that such a job description existed, or that the employer had ever agreed to assign only certain duties to the employee.

The employee's refusal to follow the employer's directive constituted misconduct.



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uploaded 2006/11/06