LEON G MARCKS, Employee

ECKLUND CARRIERS INC, Employer

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:

The employee worked as an over-the-road driver for approximately four years for the employer, a freight transportation business. He received warnings on October 1 and November 16, 2001, for leaving with a trailer that was marked "out of service" and for returning from an assignment with his tractor engine 22 quarts low on oil. When the safety director discussed the incidents with him at the time, the employee stated he had not checked the oil in the truck as required but nevertheless, blamed an engine leak. Regarding the out of service trailer, the employee stated that he must not have checked it properly. When the employee received the two warnings on November 21, 2001, he was put on notice that any additional warnings within the next twelve months would result in termination.

On February 11, 2002, the employee was backing up into a receiving dock when he struck either the dock or a railroad track and bent the bumper. The cost of repair was approximately $800.00. On February 14, 2001, he ran out of fuel on the way to Minneapolis. The employer had to dispatch a service truck to refuel the employee's truck. It would not start after being refueled and had to be towed to a service station at a considerable cost. On February 25, the employee made a sharp turn causing the tires to either go over the curb or become pressed against it resulting in damage to the outside tires and the rims, at a cost of $879.32. The employee was discharged on March 7, 2002, (week 10) by the safety director for his history of accidents and mishaps while driving for the employer.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

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' with in the meaning of the statute."

The employer asserted that the employee's accidents and other incidents demonstrated carelessness to such degree as to amount to misconduct connected with his work. The commission agrees. The employee was clearly negligent in failing to notice the "out of service" sign on the truck and for failing to check the oil. After that time the employee was warned that any further incidents could result in his discharge. Although he claimed he did not realize that further written warnings could result in termination, he testified that he did see that this was written on Exhibit 1. With regard to the February 11, 2002, incident the employee testified that it was a very difficult area to back into. There was a sewer vent, as well as railroad tracks to contend with. This accident seemed no more than ordinary negligence. However, the employee ran out of fuel on February 14. He testified that they could only fuel at Pilots, and that when he was in Minneapolis he knew he could not make it to the nearest Pilot. He did call dispatch, and told them he might be able to make New Earth, but not Worthington. The employee said it might be close. The dispatcher told him to try to make it to Worthington. However, the employee should have explained to the dispatcher exactly how serious the matter was. His indication that it might be close did not give the dispatcher an accurate picture of the situation.

With regard to the final incident, the employee got lost and asked a police officer for directions. The employee testified he was going to slide the tandems forward, which would have prevented the accident but the officer told him to go ahead. The employee then stated he should have done it his way. The employee's reliance upon a police officer was unreasonable, given the situation. The employee was an experienced truck driver and knew that he did not know how much experience the police officer had. In addition, he was aware that he was in a serious situation and was responsible for his truck.

These incidents all occurred within five months. The employee's pattern of negligent behavior, for which he was discharged, demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 10 of 2002, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 11 through 16 of 2002, amounting to a total of $1,944.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

The initial benefit computation (UCB-700) issued on March 10, 2002, 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. The employee is required to repay the amount of $1,944.00 to the Unemployment Reserve Fund.

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 September 11, 2002
marckle . urr : 145 : 1  MC 662

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that she believed that the employee was at fault in the first incident and did not believe his testimony that he checked the oil. The ALJ did accept the employee's version of events in the other cases. The ALJ pointed out that the employer conceded that the dock was in a tight spot. The employee gave a detailed description about backing into the dock. Further, she stated that the employee would not want to run out of fuel in the winter. With regard to the final incident, she believed the employee when he said that he thought the police officer was an authority figure. The commission disagrees with the ALJ's credibility determination for a number of reasons. The employee was an experienced truck driver, and should have known that he might well run out of fuel. As such, he should have conveyed the seriousness of the situation to the dispatcher. The commission also found his reliance upon the police officer to be unreasonable given that the employee, as an experienced truck driver, did not think he should go ahead.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.

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uploaded 2002/09/30