MICHAEL L NIFFENEGGER, Employee

AUTOZONERS LLC, Employer

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:

The employee worked about eight years as a store manager for the employer, a retail automotive parts distributor. His last day of work was August 24, 2007 (week 34) when the employer notified him that it was terminating his employment.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer's Code of Conduct, of which the employee had been issued a copy, required its workers to cooperate fully with any investigation into violations of the Code of Conduct. The Code of Conduct indicated that failure to cooperate could result in disciplinary action, up to and including termination.

On July 31, 2007, the employer notified the employee that it had received a complaint that the employee had been taking and/or giving away the employer's merchandise and using foul language at work. The employer questioned him for a substantial length of time. He denied all allegations. The employer then proceeded to write the questions it had presented to him in long-hand and required him to answer the questions in long-hand. On Friday, August 17, 2007, the employee's supervisor, the area human resource manager and the loss prevention manager met with the employee and proceeded to repeat the interrogation of July 31. After doing so the employer again had all questions hand written and required him to reply in writing. On Monday, August 20, the employee's supervisor advised him that the managers were going to return on August 21 to interrogate him again. However, when the managers appeared at the employee's store on August 21, 2007, the employee told them that the subject had been covered and he would not answer any more questions. As a result, on August 24, 2007 (week 34) the employer notified him that it was terminating his employment because he had violated its Code of Conduct by not fully cooperating with its investigation.

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."

It was the employer's position that it could question the employee for as long as it chose and if at any time an employee refused to cooperate the employee would be discharged. However, in this case, the commission finds that the employee's refusal to continue to respond to the employer's questions did not constitute an intentional and substantial disregard of the employer's interests. The employee cooperated through four and one-half hours of questioning. The employer presented no firsthand evidence that the employee engaged in wrongdoing that justified its interrogation of the employee.

The commission therefore finds that in week 34 of 2007, the employer discharged the employee but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 34 of 2007, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed December 13, 2007
niffemi . urr : 132 : 1 : MC 640.03

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission does not reverse the ALJ based on the credibility of the witnesses but has reached a different legal conclusion than that reached by the ALJ.

cc: Autozone (Monroe, Wisconsin)

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