Gregory v. Anderson

Dieterich, J.

(dissenting). This issue is: Is there any credible evidence to sustain the commission’s finding that the employee’s off-duty drinking, which violated his agreement with his employer, did not constitute “misconduct connected with his employment?”

Clearly, the employee’s voluntary off-duty consumption of intoxicants, as prohibited by the agreement, constituted misconduct but it was not misconduct connected with his employment unless such prohibition bore a reasonable relationship to his employer’s business interest.

The interest protected was the employer’s insurance coverage and a rule prohibiting conduct which could, or would jeopardize such insurance coverage would indeed be reasonable. Likewise, a rule prohibiting conduct which could not jeopardize such coverage would not be reasonable.

The record discloses that some companies will not insure trucks used in this type of business in any event; that other companies had canceled insurance, and that Iowa National was informed of the rule against drinking along with other facts concerning the employer’s business before it agreed to issue the policy. The employer and insurance sales agent testified that the rule may have had a bearing as far as acceptance of the risk was concerned. However, there is no evidence that Iowa National required such a rule or adherence thereto as a condition precedent to issuing or continuing its insurance coverage.

It is also a fact that the insurance coverage only applied to business vehicles while being used on company business. *142 Thus, the risk which was being insured against could not have been enhanced by the employee’s off-duty drinking unless he carried his intoxication onto the job. The record expressly negates this latter possibility.

The majority opinion cites several examples to establish the reasonableness of the rule and concludes from the evidence that as a matter of law, the rule was reasonable. A clerk’s disparaging remarks would indeed affect his employer’s sales as would a Y.M.C.A. secretary’s off-duty drinking detract from the organization. Likewise, a bank teller who gambles himself into debt could easily be tempted to embezzle from the bank. In fact, gambling in this state is illegal and a bank would be justified in discharging a teller who so violates the law. These examples are not analogous for the reason that each bears a reasonable relationship to the employer’s business interest whereas in the instant case that is the precise question before this court.

The employer had the burden of proof and the commission was the sole judge of the credibility of the witnesses and the sole arbiter of the facts. The commission found that the employer’s rule did not bear a reasonable relationship to the employer’s business interest and hence, violation of same did not constitute misconduct connected with his employment. There is credible evidence in the record to support the commission’s findings which requires reversal of the judgment of the circuit court and the reinstatement of the decision of the commission.