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

KEITH R HURCKMAN, Employee

B & M TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02005760MD


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 three months as an over-the-road truck driver for a trucking company. He quit on July 11, 2002 (week 28).

The employer merged its business with another trucking company on July 1, 2002. As a result of the merger, the employer changed insurance companies. The previous insurance company permitted non-employees to ride in the trucks. The new insurance company did not permit riders. The employee drove long hauls to the west coast and took his wife with him. He objected to the change. At the hearing he also mentioned that he feared other policy and pay changes and had heard from other drivers about changes concerning on-the-road advances. He did not ask the employer about any rumored changes. No significant policy changes were planned and the employee's rate of pay would remain the same.

The issue is whether the employee's reasons for quitting amounted to good cause attributable to the employer.

"Good cause attributable to the employing unit" means some act or omission by the employer justifying the employee's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965)).

The employee quit because he could no longer take his wife with him on long trips and he was unwilling to be away from her so long. He raises other issues but he never asked the employer what other impact the merger would have on his work. He was unreasonable to rely solely on rumors conveyed by co-workers if he was genuinely concerned. There is no support for the employee's contentions that his pay would change.

The employee had a valid personal objection to not being able to have his wife travel with him since he had always worked under those conditions. However, it falls short of good cause attributable to the employer. The employer did not hire the employee with the understanding that his wife would always accompany him and she was not its employee. It was simply the employee's preference. The employer testified that if the duration of the trips was the problem, and the employee needed to be home more, it could have assigned him to shorter routes. However, the employee never raised the objection directly with the employer prior to giving notice of quitting. Therefore, the commission concludes that the employee's quitting was not within any exception permitting the immediate payment of benefits.

The commission therefore finds that in week 28 of 2002, the employee voluntarily quit his employment within the meaning of Wis. Stat. § 108.04(7)(a), and that his quitting was not within any exception permitting the immediate payment of benefits.

The commission further finds that the employee was paid benefits in the amount of $11,395 during weeks 29 of 2002 through 11 of 2003, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

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). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 28 of 2002, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay $11,395 the Unemployment Reserve Fund.

Dated and mailed March 27, 2003
hurckke . urr : 178 : 3  VL 1054.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. The commission accepts the reasons for the quitting found by the ALJ but determines as a matter of law that those reasons do not amount to good cause attributable to the employer.

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.


Appealed to Circuit Court.  Reversed and remanded July 24, 2003.   [Circuit Court Decision summary]

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