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

BARRY L MOCK, Employee

HARD ROCK SAWING & DRILLING SPECIALISTS CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201420EC


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 14 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. The employee is required to repay the sum of $682 to the Unemployment Reserve Fund.

Dated and mailed November 30, 2006
mockba . usd : 135 : 8  MC 610.04

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In his petition for commission review, the employee argues that because he did not perform the job or any other job for cash he could not have committed misconduct. After reviewing the record, and the parties' arguments, the commission is satisfied that a reasonable inference can be made that the employee gave a quote to a potential customer with the terms of payment in cash and that the employee intended to turn this job over to his son who was not an employee of the employer's business at that time. While the employer had not specifically restricted workers from performing side jobs during nights and weekends, as a manager, it was the employee's obligation to obtain work orders for the employer and not for himself or for family members.

The employee argues that he was never warned or reprimanded concerning this conduct. Generally, the commission holds an employee has to be aware or have reason to be aware that his job is in jeopardy or will be in jeopardy if he engages in the subject conduct before a finding of misconduct can be held. However, a warning or reprimand is not necessary to support a finding of misconduct if the dischargeable conduct is sufficiently egregious. See Jennifer C. Kreuzpaintner v. Menards, UI Hearing No. 03605888MW (LIRC March 16, 2004); Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC October 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979).

Here, the commission is satisfied that the conduct the employee was discharged for was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job was in jeopardy if he engaged in such conduct. The employee owed a duty of loyalty to his employer that involved, among other things, not engaging in activities in direct competition with the business activities of the employer. See Conway v. A Touch of Country Crafts and Gift Mall, Inc., UI Dec. Hearing No. 01601612MW (LIRC November 28, 2001); Kal A. Kerlin v. Executive Mortgage, LLC, UI Decision Hearing No. 01402871MD (LIRC March 6, 2002). The employee argues that because the job was never completed by him or his son he did not commit misconduct. The commission disagrees. The employee's misconduct stems from the employee securing work for his son in direct competition with the employer's business interests; not from the fact the employee's son never performed the work. The employee also argues that the work to be performed was not work ordinarily performed by the employer's business. In her written response to this argument, the owner explained that her business actually performed the work for this customer, Jared Jerezik.

The commission is therefore satisfied that the record supports a finding and conclusion that the employee intentionally disregarded the employer's interests and standard of behavior the employer had a right to expect of the employee thereby establishing misconduct within the meaning of Wis. Stat. § 108.04(5).



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