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

RON W MALECKI, Employe

BEST BUY STORES LTD PTRSHP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201180EC

On July 24, 1998, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing, and hearing was held on August 31, 1998 in Eau Claire, Wisconsin before a department administrative law judge. On September 3, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately nine months as a car stereo installer for the employer, an electronic retail concern. The employer discharged him on July 11, 1998 (week 28) for various failures in installations which had caused damage to customers' vehicles. The commission concludes that the employe's failures do not rise to the level of misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

In March of 1998, a customer alleged that the employe had scratched the dashboard of the customer's vehicle. The employe denied having done so, and indicated that he had not worked near that area of the dashboard. The employe's manager agreed that the employe likely did not cause that damage.

Early in June of 1998, the employe installed a tape deck into a customer's car. Unbeknownst to the employe, whoever installed the chassis for the electronic equipment had used too long a screw in doing so. The employe's manipulations of the chassis during installation of the tape deck caused the screw in question to move out of place, resulting in damage to that customer's vehicle.

On June 9, the employe installed an alarm on a customer's vehicle. According to the employer, the employe installed the alarm too high in the engine area, causing the vehicle's windshield wipers not to work. In addition, the employe snapped the vehicle's hood cable. Following this incident, the employe received a final warning on June 20, indicating that he would expected to use extreme caution when installing car audio components.

The incident precipitating the discharge occurred on July 4, when the employe and a co-worker were performing a "rush" job. The employe was to drill a hole from the passenger compartment into the engine area, in order to run wire through it. The employer's witnesses asserted, and the employe conceded, that the hole should have been drilled from the passenger compartment. The co- worker was working in that area, however, so the employe drilled the hole from the engine compartment area into the passenger compartment area and, in doing so, drilled through a heater hose. After this failure, the employer discharged the employe on July 11.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. Absent intentional failures, however, the standard becomes essentially gross negligence, that is, instances of negligence so egregious as to be tantamount to intentional failures by an employe. The commission concludes that the employe's failures do not meet this standard. As to the first matter, there is insufficient evidence to establish that the employe had anything to do with the scratch on the dashboard. With regard to the second matter, the employe's responsibility for the damage is at most slight if, indeed, he bears any responsibility whatsoever. It was not he who installed the improper screw in the first place; there is no evidence in the record to indicate that he was even aware that such a screw had been used. Damage resulting from the screw therefore is not attributable to him. With regard to the third matter, the employe conceded having snapped the hood cable. There was very little room for the car alarm, though, and he placed it where he thought best. With regard to the incident precipitating the discharge, the employe testified that he had examined both the passenger compartment and engine compartment areas in order to gauge where to drill the hole in question; he simply used the wrong nut and bolt as his reference point.

The employe was not responsible for the March and June 6 instances of damage to customers' vehicles. He was responsible for the damage resulting from the June 9 and July 4 repairs, but there are sufficient mitigating circumstances to preclude a finding of misconduct for unemployment insurance purposes. The commission therefore finds that, in week 28 of 1998, the employe was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. � 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance as of week 28 of 1998, if he is otherwise qualified.

Dated and mailed: January 14, 1999
malecro.urr : 105 : 1  MC 663

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission does not disagree with the credibility assessments underlying the administrative law judge's factual findings; rather, the commission believes that the employe's failures, when placed in context, do not rise to the level of misconduct for unemployment insurance purposes.

cc: BEST BUY STORES LP

ATTORNEY TERRY L MOORE
HERRICK HART DUCHEMIN SPAETH SULLIVAN & SCHUMACHER

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I would accept the decision of the administrative law judge as my own.

Pamela I. Anerson, Commissioner

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