PAUL J VAN LAARHOVEN, Employee

VALLEY EXPRESS LLC, Employer

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 20 of 2005, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed December 23, 2005
vanlap2 . usd : 135 : 1   MC 662

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employee argues that his driving behavior substantially improved after his probation period began on March 18, 2005. The employee explains that the accident on May 9, 2005 was unforeseen like with "black ice" and that he had driven many miles in the rain with no problem before. The employee also argues that another company driver completely rolled his tractor and trailer over when entering a rest area and the employer did not discharge that driver. The employer however testified that while it was aware of this driver and his circumstances, the employer explained that this driver had no previous driving infractions. Here, the employee had been placed on probation on March 18, 2005 because of a number of incidents that the employee was involved in. Moreover, this notice advised the employee that if he had any further violations of company policies, traffic laws, accidents, incidents or other problems, the employer would take additional disciplinary action up to and including termination. On May 9, 2005 the employee received a citation for driving too fast for conditions and after investigating the matter the employer discharged the employee on May 13, 2005.

At the hearing and in his brief the employee contends that he was not discharged for misconduct connected with his employment. The employee argues that in order to meet the misconduct standard articulated in Boynton Cab Co. v. Neubeck, there needs to be "an intentional and substantial disregard of the employer's interests." The employee cites Marek Derezinski v. Wisconsin Express Lines, UI Hearing No. 89-403256GB (LIRC March 23, 1990) as an example of a case in which the commission found no misconduct where a truck driver had been involved in two accidents. In that case the commission concluded that that truck driver's negligence did not rise to the level of misconduct. The employee's case however is distinguishable from the facts in Marek Derezinski, supra, since the employee here was placed on probation and was told that any further violations of the employer policies, traffic laws, accidents, incidents or other problems could lead to termination. After investigating the matter the employer considered the citation the employee received for driving too fast, along with the employee's other incidents, and discharged the employee for poor driving.

Given the seriousness of employee's incidents, his probation and subsequent citation, the commission is unwilling to conclude that these actions amount to ordinary negligence as the employee argues. Rather the commission is satisfied that the employee's overall conduct demonstrated gross negligence necessary to support a finding of misconduct within the meaning of the law. The appeal tribunal decision is therefore affirmed.

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uploaded 2006/01/03