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

KEVIN A CUA, Employee

G & O TRUCKING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03202005EC


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 three-quarter years as an over-the-road truck driver for the employer, a trucking company. His last day of work was August 22, 2003 (week 34). He was discharged by the employer on August 25, 2003 (week 35).

The issue to be decided in this case is whether the employee's discharge was for misconduct connected with his employment.

The employee was in an accident on August 21, 2003 (week 34), and was charged with improper lane change in connection with an accident. Nothing was said to him by the police officer at the scene of the accident about testing for alcohol or drugs. The accident occurred at about 2:00 p.m., Central Standard Time, near Waukegan, Illinois. After matters were completed at the scene of the accident, the employee went to Libertyville, Illinois where he picked up a load. The employee delivered the load in Washington Court, Ohio, at about 7:15 a.m. the following day. The employee did not have a drug test taken and he was discharged.

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."

When the employee called the employer's client to report the accident, at about 4:30 p.m., he was told he needed a drug test. The safety worker told the employee that there was a terminal in Bensonville, Illinois, about an hour south of the accident. The safety worker told the employee to go to Bensonville after he was loaded in Libertyville, Illinois. After the employee was loaded he received a message indicating that by the time he got to Bensonville, the testing facility would be closed. At 8:39 p.m. the safety director called the employee and indicated that he could not find a place for the employee to take a drug test. The employee was instructed to look for a place in a phone book. The employee indicated there was no phone book at the phone booth. The director repeated that the employee needed to take a drug test. The employee responded that he could not drive any further because he had driven all of his allotted hours for the day. The director had no suggestions. The employee then contacted the insurance company and the employer's dispatcher. The dispatcher instructed him to deliver his load. The employee delivered the load.

In this case, the employee was willing to take a drug test, but the employer was unable to find a testing facility that was open. The employee explained that he too was unable to find a drug testing facility. The employee did not disregard any instruction to report for testing at any specific location. As such, while the employer may have had a valid business reason for discharging the employee, his actions did not evince such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 35 of 2003, the employee was discharged but that his discharge was not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2003, if otherwise qualified.

Dated and mailed June 10, 2004
cuake . urr : 145 : 1  MC 652.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. She indicated it was a difficult case to resolve from a credibility standpoint because both parties appeared credible. However, she thought the employer's description of the employee's admission was credible. Further, she indicated the employer's witness appeared surprised, during his cross-examination of the employee, that the employee responded that he did not admit to the employer that the safety director instructed him to return to Bensonville. The commission notes that the employer originally testified that the employee's story was different than that of the client and that the employer had no choice but to believe the client. However, if the employee had made the admission the employer later testified to, the employer would have no reason to have to choose between the version of the employee and the client.


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