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


STEVE J FELPER, Employe

NATIONAL AUTO PURCHASING INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96005160BD


On October 11, 1996, the Department of Workforce Development issued an initial determination which held that the employe's quit was not for a reason allowing the immediate eligibility for unemployment benefits. The employe timely requested a hearing on the adverse determination, and hearing was held on November 19, 1996 in Beaver Dam, Wisconsin before a department administrative law judge. On December 6, 1996, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about ten months as a over-the-road driver for the employer, a trucking company which hauls automobiles and light trucks. His last day of work was September 26, 1996 (week 39), at which time the separation from employment occurred. The initial issue to be decided is whether the employe quit or was discharged. If the employe quit, a second issue is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits. The commission concludes that the employe did quit, and that he did so with good cause attributable to the employer, within the meaning of sec. 108.04 (7)(b), Stats. The commission therefore reverses the appeal tribunal decision.

On his last day of work, the employe had just returned to the Madison area on a haul from Columbus, Ohio. He already had exceeded the number of hours that he could legally drive without rest when he received a message from the employer that he was to meet the owner in Milwaukee to pick up a load that evening. The employe indicated that he was "out of hours" at that time. He also asked the operations manager what the requirements were for giving notice. The operations manager subsequently relayed a message from the owner that if he (the employe) returned the truck and the papers, the employer would consider the relationship closed. Nonetheless, the owner still wished the employe to take the assignment and proceed to Milwaukee. The employe, instead of proceeding to Milwaukee, then drove the truck toward the employer's Hartford, Wisconsin base, hauling his personal vehicle in it. The truck broke down en route. After assisting the employer's owner in determining that it required towing, the employe left for home in his own vehicle. He returned the employer's paperwork early the next week.

A quit of employment for unemployment compensation purposes includes conduct inconsistent with an intent to continue the employment relationship. In addition, it is generally an employe's responsibility to clarify any uncertainties which exist with regard to the status of an employment relationship. Given these factors, the commission believes the employe's failure to accept the Milwaukee assignment and his return of his truck and the employer's paperwork was conduct inconsistent with an intent to continue the employment relationship and, as such, a quit by the employe, and the commission so finds. The commission also believes, though, that the employe's quit was with good cause attributable to the employer.

Pursuant to sec. 108.04 (7)(b), an employe is eligible for benefits notwithstanding a quit, if the quit was with good cause attributable to the employer. Such cause includes "a request, suggestion or directive by the employing unit that the employe violate federal or Wisconsin law." Sec. 108.04 (7)(b), Stats. The administrative law judge, in holding that the employe did not have good cause to quit the employment, reasoned that the employe could have refused the employer's assignment without quitting, and that the employe did not explore options short of quitting to address the problem. An employe who receives a request, suggestion, or directive by the employer to violate the law, however, is not obligated to bargain with the employer for his or her job. "An employe who is asked by his employer to violate the law need not exhaust reasonable alternatives to quitting. A request by an employer that the employe violate the law is, as a matter of law, good cause attributable to that employer." Koziel v. LIRC, Case No. 89-CV-1231 (Dane Cty. Cir. Ct. 10/6/89). The commission therefore finds that, in week 39 of 1996, the employe terminated his employment with good cause attributable to the employer, within the meaning of sec. 108.04 (7)(b), Stats.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits, if he is otherwise qualified.

Dated and mailed: February 27, 1997
felpest . urr : 105 : 1 VL 1080.12

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

NOTE: The commission did not confer with the administrative law judge, before determining to reverse the appeal tribunal decision. Such conferral is required where the commission is considering the reversal of an appeal tribunal decision, and credibility was a factor in the administrative law judge's factfinding. Such was not the case here. The commission has accepted the factual findings of the administrative law judge. As a matter of law, however, an employe need not exhaust alternatives to quitting when the employer has requested, suggested, or directed the employe to violate federal or Wisconsin law.


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