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

JOSHUA A CHANTELOIS, Employee

BAY TOWN TIRE CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06202021AP


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 twenty-seven months as a tire technician/installer for the employer, an automotive tire and repair business. His last day of work was September 7, 2006 (week 36).

The employee's job installing tires for the employer did not require a valid driver's license. The employer employed a technician who did most of the test-driving of vehicles. The employee lost his driver's license while working for the employer. He lost his license for 11 months. During that time, the employer allowed the employee to move cars on rare occasions. The employee got the license back sometime in July or August of 2006. The employee had his license for one month when he again lost it on or about August 24, 2006, due to an OWI. He notified the employer that he lost his license. Two weeks later, the employee and the employer got into a dispute regarding whether work needed to be performed on a customer's vehicle. At that time, the employer informed the employee that his employment was terminated.

The initial issue to be decided is whether the employee's employment was suspended or terminated because of the loss, suspension, or nonrenewal, due to the employee's own fault, of a license that the employee was required to have in order to perform that work.

The disqualification due to a loss of license under Wis. Stat. § 108.04(1)(f) requires that the employee's employment be suspended or terminated "because" the employee's license was suspended. The employer previously allowed the employee to work 11 months without a license. An automotive technician did most of the test-driving of vehicles. The employer testified that very rarely the employee was called upon to drive a vehicle when he did not have a driver's license. Further, when the employee advised the employer that he again lost his license, the employer allowed the employee to continue working for two weeks. The employer discharged the employee following what it considered an act of insubordination on the part of the employee. These facts lead the commission to conclude that the employer did not in fact discharge the employee because he lost his license.

The next issue to be decided is whether the employer discharged the employee 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 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 employer discharged the employee for what it deemed an act of insubordination. The record merely reflects a disagreement between the parties regarding whether work should be performed on a vehicle. The parties provided no further details of the dispute. For example, the record does not reflect that the employee used coarse language. The record further does not indicate that the employee knew that by disagreeing with the employer he placed his employment in jeopardy. The employer failed to establish that the employee was discharged for conduct that demonstrated an intentional and substantial disregard for the employer's interests.

The commission therefore finds that in week 36 of 2006, the employee's employment was not terminated by the employer because a license issued by a government agency that was required by law in order to perform the employee's customary work for the employer, had been suspended, revoked or not renewed due to the employee's own fault, within the meaning of Wis. Stat. § 108.04(1)(f).

The commission further finds that the employer discharged the employee but 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 employee is eligible for benefits beginning in week 36 of 2006, if he is otherwise qualified. The commission remands this matter to the department to investigate whether the employee was available for work as of week 36 of 2006, based on the loss of his driver's license.

Dated and mailed January 25, 2007
chantjo . urr : 132 : 1 :   AA 130  MC 665.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ did not impart any demeanor impressions she had of the witnesses that led to her decision.


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