BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

DENNIS D. THOMPSON, Employee

Involving the account of

GERALD HAMMES TRUCKING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-000743 LX

 


The Department's Initial Determination held that in week 5 of 1989, the employe terminated his employment with his employing unit and that his quitting was not within any exception of the statutes which would permit benefit payment. As a result, benefits were suspended. The employe timely appealed. The Appeal Tribunal affirmed the Initial Determination. The employe has timely petitioned for Commission review.

Based upon the applicable records and evidence in this case, and after consultation with the Administrative Law Judge regarding the credibility and demeanor of the witnesses, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe was an over-the-road truck driver for the employer, a trucking company. He quit his job on January 31, 1989 (week 5), because the employer did not properly maintain its vehicles and because the employer required drivers to drive excessive hours and falsify logs.

The issue for the Commission is whether the employe's quitting was for any reason that would permit immediate payment of unemployment benefits, within the meaning of section 108.04 (7) of the Statutes.

The incident that precipitated the quit occurred on the evening of January 29, 1989. The employe was driving a semi-tractor and trailer between La Crosse and Shawano when he hit the brakes at a snowmobile crossing. He found he had no brakes on the tractor. He crawled underneath to try to fix them but was unable to do so. Also the taillights and directionals were out on the trailer. He tried to repair those but was unsuccessful.

The employe called the employer from Stevens Point. The employer told him to try to get to a service repair center in Shawano that evening, if he could do so without getting hit. Otherwise he was to wait until the sun came up.

Similar brake and light failures were common on the employer's tractors and trailers. The employer had no mechanics on duty to do routine or preventative maintenance on its trucks.

Further, the employer discouraged drivers from listing equipment defects on their logs where a Department of Transportation inspector might observe the notation. Instead, the employer expected drivers to list defects on slips of paper to be given to the employer. Several times the employe had pointed out safety defects in trucks he had driven only to have the employer send the trucks out again with no repair.

In addition to having to drive unsafe equipment, the employer regularly forced the employe to drive over the allowed number of hours in order to make timely deliveries and to falsify his logs to cover up those extra hours. The employer routinely scheduled routes so that it was impossible to meet the schedule and to stay within the legal hours limit.

The Commission therefore finds that in week 5 of 1989, the employe terminated his employment with good cause attributable to the employing unit, within the meaning of section 108.04 (7)(b) of the Statutes.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 5 of 1989, if he is otherwise qualified.

Dated and mailed August 10, 1989
130 : CD2001  VL 1080.12

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The Appeal Tribunal held that the employe did not show that the employer acted unreasonably with regard to the incident that precipitated the termination because the employer told the employe to get the truck fixed. However, the employer sent the employe out in a truck that was in a state of disrepair and had been doing so routinely. The employer had no system for making sure that its trucks were in proper working order before it sent its drivers out. Further, the employer required the employe to travel from Stevens Point to Shawano in an unsafe vehicle. Thus the employer was at fault for the final incident.

Further, the Appeal Tribunal held that, there was no showing that the employe ever confronted the employer about the illegal practices such as driving over hours and falsifying logs. Generally, it makes sense to require an employe to inform the employer and give him an opportunity to change practices which the employe finds objectionable before the employe quits. However, that requirement does not make sense where the employer requires employes to engage in illegal activities.

"Good cause attributable to the employer" includes by definition "a request, a suggestion or directive by an employing unit that an employe violate federal or Wisconsin law." Driving over hours, driving unsafe equipment and falsifying logs, are all violations of state and federal law.

There is no doubt that this employer knew those practices were illegal. Nevertheless they were part of the employer's general operating procedure. Under these circumstances it would have been senseless to require an employe to confront the employer about the illegal activity before he quit.

In his conference with the Commission concerning credibility, the Administrative Law Judge said that he found the employe to have been a credible witness.

cc: 
Dorothy J. Stroschein
Attorney at Law
Cameron, Nix, Collins & Quillin, Ltd.

Daniel E. Dunn
Attorney at Law
McDonald, FitzPatrick, Schroeder & Smyth


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