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


JEFF M RUDOLPH, Employee

ORT TRANSPORTATION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00403230AP


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 about one and one-half years as a truck driver for the employer, a business engaged in hauling lumber, logs and wood chips. He was informed upon hire that he would be required to occasionally drive to Illinois. He disliked taking Monday loads to Chicago because it required that he leave in the early morning hours on Sunday thus reducing time he had to spend with his family. On occasion, including August 28 and September 11, the employee was assigned to Monday Chicago loads and complained about the assignments. On August 28 he was relieved of the assignment because another load scheduled for Chicago cancelled and another driver took the employee's load. He was required to take the September 11 load although he complained about that also.

On October 6, 2000 (week 41) the employee was again assigned a Monday Chicago load. He again complained to the employer. The employer told the employee that no one else was available because the other Chicago driver was on vacation and another driver had already been assigned a load.

The employee moved his truck after it was loaded and gathered his radio and personal belongings to take home on the weekend. The employee later called the employer and spoke with the office manager. The employee told the office manager that he was not taking the load on Monday to Chicago. The telephone was then handed over to the mechanic/dispatcher who discharged the employee.

The issue to be decided is whether the employee was discharged for misconduct connected with his work. 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 compensation 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 repeatedly expressed his displeasure with Monday Chicago loads. Before calling the office manager he had been told that no one else was available. The employee was expecting a visit from his sister and did not want to take the load. The aforementioned facts lead the commission to conclude that the employee did refuse to take the load. The commission finds that the employee's refusal to take the assigned load constituted insubordination and an intentional and substantial disregard of the employer's interests.

The commission further finds that the employee was paid benefits in the amount of $4423.00 for weeks 42 through 48 and 51 through 53 of 2000 and weeks 1 through 5 of 2001, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 41 of 2000, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $4423.00 to the Unemployment Reserve Fund. The initial benefit computation (form UCB-700) issued on October 9, 2000 is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed February 13, 2001
rudolje.urr : 132 : 1 : MC 640.03  MC 640.12

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that she did not base her decision on the credibility of any witness and expressed no demeanor impressions of any witness. The commission finds the office manager's testimony credible that the employee refused to take the load.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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uploaded 2001/02/14