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

JASON A ORTIZ, Employee

PER MAR SECURITY & RESEARCH CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09610722MW


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 about five years as a security guard for the employer, a private security company. His last day of work and date of discharge was October 1, 2009 (week 40).

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's employment.

The employer has a policy which states that an employe cannot "work for a competing company in any capacity." It also provides that working for a competing company can result in immediate termination. The employer's policy also recognized that workers might obtain part-time employment in addition to working for the employer. The policy requires workers to inform the employer "of any outside employment, not only for scheduling purposes, but to ensure that there is no conflict of interest."

In September of 2009, the employee began working part-time at a second job. The employee called the employer and informed her of the position, as required by the employer's policy. The employer informed the employee on October 1, 2009, that he was aware he could not work for a competing company. The employee explained because the part-time work was with an "in house" security company, he did not realize it was a competitor. The employer explained that since it bid on many of the same accounts, the employer saw it as a competing company. The employer then gave the employee the choice to stay with the employer or go to the other company. The employee said he was not certain what he should do and the employer then discharged him.

In a situation in which one party is given the choice to remain employed by complying with an employer directive or not complying with the directive and becoming unemployed, if the worker chooses not to comply the commission will find the worker quit. This is because it was the employee's choice that resulted in the ending of the employment relationship. While the employee in this case was given the choice to remain employed by quitting his part-time job, the record in this case does not reflect that he actually exercised that choice. The employer indicated that when the employee expressed confusion over what to do, it discharged him. The employee was not aware, when he accepted the part-time position, that the employer would consider this to be a competitor. The employee was then asked to make a decision, and when he expressed some hesitation, the employer discharged him. It would appear that the employee was deciding what to do, and not that he had decided to quit working 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 employee in this case did not intentionally violate the employer's rule. In fact, the employer's rule allows for the fact that there is ambiguity in what might be considered a conflict of interest as it indicates that workers should notify the employer about obtaining work for another employer so that the employer can decide whether a conflict exists. The employee notified the employer of the part-time job, so he was not trying to conceal the fact that he had obtained the job. The employee had a reasonable basis for believing that the second job was not with a competitor of the employer. Finally, the employee did not refuse to quit his part-time job when he learned that the employer considered it a competitor.

The commission therefore finds that in week 40 of 2009, the employee was discharged by the employer 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 40 of 2009, if otherwise qualified.

Dated and mailed April 30, 2010
ortizja . urr : 145 : 5 MC 628 MC 610.04

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that although he remembered the witnesses he had no real credibility impressions of the parties. The ALJ noted that the employee was given the choice to quit his other job and remain employed and that the employee did not take the opportunity to do so. The commission does not disagree with the ALJ's findings of fact. Both parties agreed that the employee was given the opportunity to quit his employment. However, there is no evidence in the record that the employee refused to quit the second job. Therefore the commission did not find the employee to be insubordinate. Further, the commission found the employee credible when he testified he did not believe the part-time employer was a competitor. As such, he did not intentionally violate the rule about getting a part-time job that created a conflict of interest.

cc: Per Mar Security & Research Corp. (Davenport, IA)


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