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

BRUCE K GILBERTSON, Employee

STOCK LUMBER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04005766BO


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 about 26 weeks as a CDL commercial driver for the employer, a lumberyard. His last day of work was on October 17, 2003 (week 42).

The employee injured his shoulder and was unable to work until his doctor released him to return to work without restrictions on October 7, 2003. He was not referred to an orthopedic physician until November 7, 2003.

On October 20, 2003, the employee was convicted of operating a motor vehicle (in this case a motorcycle) while intoxicated and his license was suspended. Under the employer's policy, any CDL driver convicted of driving while intoxicated is not permitted to drive for the employer for three years. On November 10, 2003 (week 46), the employer discharged the employee.

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's 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."

Pursuant to Gregory v. Anderson, 14 Wis. 2d 130 (1961), the employer has the burden to establish that its work rule governing off-duty conduct was reasonable. Further, "the reasonableness of such a rule must be tested as of the time of its adoption. It is a reasonable rule if violation is reasonably likely to harm the employer's business interests." Gregory at 138. The employer presented no evidence at the hearing regarding why it adopted the policy that a DWI conviction results in discharge to allow a determination that the rule is a reasonable one. In Betters v. Kimberly Public School, UI Dec. Hearing No. 02403251AP (LIRC July 29, 2003) the commission noted:

[T]he commission has been admonished for relieving the employer of its responsibility to show that off-duty conduct is sufficiently connected to a worker's employment to find misconduct. In Nelson v. LIRC and DHL Airways, Inc., No. 91-CV-181 (Wis. Cir Ct. Calumet County Aug. 13, 1992), the employer had a written policy which provided for discharge for an off-duty violation of driving while under the influence of alcohol or controlled substances. The employee was aware that he could be discharged for a conviction for driving under the influence. The employee was in fact convicted of driving under the influence and was discharged as a result. The commission found misconduct, inferring that the rule was reasonable because the public might adversely view the employer if it would employ drivers with such off-duty violations. The court reversed the commission stating:

" . . there is absolutely no evidence in the record of the hearing which supports this inference. Even if true, this conclusion of the Commission can only be described as conjecture. It is not the job of this Court nor the Commission to supplement the record made before the hearing examiner with evidence that might have been offered. . . .

". . . The employer may well have had valid and compelling reasons for the off-duty work rule in question, which may have included the inference found by the Commission, as well as the uninsurability of hired drivers with OMVWI convictions, but no such evidence or concerns were expressed by [the employer] at the hearing. [The employer] introduced no evidence that it was adversely affected other than the claimed license and federal regulation consequences, both of which concerns were unfounded. As a side note it is not important how the public perceives [the employer's] employment policies in this context as long as its business interests are not adversely affected. Gregory, supra at 138. What the Commission infers from the evidence is nothing more than a conjecture which lacks support from the record, and this Court cannot assume how the employer could or should have created a record which would have supported the Commission's conclusion."

Nelson, at 3-4.

The employer testified that at the time of the employee's conviction it had a hiring freeze and could not hire another CDL driver. Again, the employer did not establish that the employee was unable to obtain an occupational license to allow him to continue his normal work for the employer. Nor does this establish why it adopted the policy in the first place.

The commission therefore finds that in week 46 of 2003 the employee was discharged but 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 46 of 2003, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed March 8, 2005
gilbebr . urr : 132 : 4 : MC 617

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 


NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission's reversal of the ALJ's decision is not based on the credibility and demeanor of the witnesses.

 

cc:
Stock Lumber
Agent James B. Schmidt


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