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

ERNESTO G  NORIEGA, Employee

WISCONSIN POWER & LIGHT CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04003600MD


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 14 years as a materials handler for the employer, a power utility company. The employee's last day of work was June 2, 2004. The employee was discharged on June 11, 2004 (week 24).

The employee was required to have a valid Wisconsin driver's license for his employment because his work included transporting materials on and off the employer's premises. In 1997, the employee lost his Wisconsin driver's license due to driving while under the influence of alcohol. At that time, the employee's occupational license was also revoked for a period of 60 days. The employer determined that accommodations could be made to the employee in his job position, specifically all of the aspects of his job that did not involve driving. As a result of this incident the employer and employee entered into a last chance agreement that required the employee to maintain a valid driver's license after regaining it and to have no further incidents involving alcohol or drugs so it would affect his ability to perform his work. The last chance agreement did not contain a specific duration. See Exhibit 12.

In December of 2003 the employee was in an accident and was charged with driving while under the influence of alcohol as well as hit and run. The employee notified his supervisor promptly of the incident and the possible impact on his license. In January 2004, the employee's driver's license was suspended and he obtained an occupational license. The employee notified his supervisor of this fact.

The employee's court hearing involving the December 2003 incident occurred on April 27, 2004. The employee did not have an attorney representing him. The employee pled no contest to driving under the influence of alcohol as well as no contest to the hit and run charge. The employee was sentenced to four months jail and was given Huber privileges. The employee's driver's license was revoked for 36 months at which time the circuit court judge informed the employee that he would have to go though an assessment process to get his license back.

At one point during the end of this court hearing, the employee asked the judge how he could get an occupational license to which the judge replied, "You do that at the clerk's office at the Department of Transportation but you don't do it in this case." See Exhibit 1, pg.7. At the conclusion of the hearing an assistant district attorney on record, Ms. Lyn Opelt, explained that the employee would not be able to get an occupational license for quite a while and he would have to check with the Department of Transportation. See Exhibit 1, pg.9. The judge reiterated again to the employee that he would have to apply for the license at the Department of Transportation and that this assistant district attorney did not think the employee was going to be eligible for a while.

After the hearing the employee spoke with the other assistant district attorney, Mr. Jay Mimier. Assistant District Attorney Mimier entered the plea on behalf of the State at the employee's court hearing. The employee understood this assistant district attorney to tell him that his occupational license (the one that he applied for in January of 2004) would be valid until he heard from the Department of Transportation that it was no longer valid. Indeed, this assistant district attorney wrote a letter to the employer after the court hearing indicating that he may have provided erroneous information to the employee about the status of an occupational license at the time of court hearing and not to hold the employee's misunderstanding against him. See Exhibit 10.

Based on this conversation with assistant district attorney Mimier, the employee informed his supervisor that his occupational license was still valid. The employee received a letter from the Department of Transportation in mid-May that stated that his driver's license was scheduled to be suspended on May 27, 2004 unless he took one of three actions. A meeting was held with the employee's supervisor and others to determine how to proceed. The employee was placed on administrative leave on June 2, due to his driver's license status.

On June 4, 2004 the employee called his supervisor and left a voice message that he had just received two letters from the Department of Transportation, one which stated his privilege to drive a motor vehicle was revoked effective April 27, 2004. The employee expressed surprise and stated he did not know that and thought he still had an occupational license at the time. As a result of this the employer began an investigation and obtained and reviewed a transcript of the court hearing on April 24 and questioned the employee about it on June 8. During that meeting the employee reiterated he did not know that his occupational license was invalid as of the April hearing. The employee was discharged on June 11, 2004 for falsely informing his supervisor that he had a valid occupational license after the April hearing, for continuing to operate a company vehicle after the April hearing and because his position requires a valid driver's license and requires that he advise his supervisor of any change in his driver's license's status.

The issue for review is how to characterize the employment separation. The ALJ treated the employment separation as a discharge. However, an employee may be found to have voluntarily terminated his employment despite the fact that he employee has never expressly stated, "I quit." For unemployment insurance purposes, a quit can include a situation in which an employer actually discharges a worker. Nottelson v. ILHR Dept., 94 Wis.2d 106,119 (1980). An employee can voluntarily terminate employment by knowingly refusing to take action that would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis.2d 181,188 (Ct. App. 1983). An employee may demonstrate intent to leave his or her employment by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson, Wis.2d at 119; Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953).

In this case, the employee failed to follow through and ensure that his occupational license was valid so that he could continue employment with the employer. The employee failed to do this even though the circuit court judge handling his court hearing informed the employee to contact the Department of Transportation to obtain an assessment regarding his license status. The conflicting information the employee received at and then after his court hearing by the assistant district attorneys obligated the employee to clarify his status regarding his occupational license. While the court hearing and ensuing legal process may be confusing to an unrepresented defendant, any confusion regarding the employee's occupational license could have and should have been clarified by the employee. Here, the commission is satisfied that the employee's failure to clarify and/or obtain an occupational driver's license after the court hearing was conduct inconsistent with the continuation of employment thereby establishing a quit by the employee within the meaning of Wis. Stat. § 108.04(7).

The remaining question is whether the employee's quitting meets any exception to the quit disqualification found at Wis. Stat. § 108.04(7). The employee was required to maintain a valid Wisconsin driver's license and his license was revoked as a result of convictions of driving under the influence and hit and run, after entering no contest pleas. The employee failed to obtain an occupational driver license to be able to continue in his employment with the employer. The employee's overall actions and above noted failure do not meet any exceptions to the quit disqualification.

The commission therefore finds that in week 24 of 2004, the employee terminated work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a) and, that his quitting was not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits amounting to a total of $8554 for which the employee is not eligible and to which the employee is not entitled, with in 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 over payment 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 commission reached a differing legal conclusion based on essentially the same set of facts as found by the ALJ. However, a reversal of an ALJ's ATD under these circumstances is not considered "department error" within the meaning of the Wis. Stat. § 108.02 (10e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2004, and until four weeks have elapsed since the end of the week of quitting and the employee 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. The employee is required to repay $8554 to the Unemployment Reserve Fund.

Dated and mailed April 15, 2005
noriega : 135 : 1   VL 1007.01

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

MEMORANDUM OPINION

The commission did not confer with the ALJ because it reaches a different legal conclusion based on essentially the same set of facts found by the ALJ. The commission finds that the employee's failure to obtain an occupational license prevented his ability to continue in employment with the employer and constituted conduct inconsistent with the continuation of the employment relationship thereby establishing a quit. The commission is satisfied that the employee quit without any exceptions and is ineligible for benefits until he requalifies for benefits.

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.

 

cc:
Local Union #965, IBEW
Attorney Deborah M Neyens


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/04/19