RICHARD L DERKSEN, Employee

BUESING BULK TRANSPORT INC, 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 makes the following:

The employee worked for more than ten years as an over-the-road truck driver for the employer, a trucking business. His last day of work was July 15, 2005 (week 29), when he suffered broken ribs, a lacerated scalp and other injuries in an accident while driving the employer's tractor-trailer. The employer discharged him on July 25, 2005 (week 31). He then claimed unemployment benefits.

The employee was a licensed commercial driver, subject to the federal motor carrier safety regulations (49 CFR Parts 390-99). Those regulations and the employer's policies required a driver to wear a seatbelt while operating the employer's equipment. In the accident, the truck ran off the edge of the road and tipped on its right side after the engine quit, causing a loss of power steering. The employee then could not control the loaded vehicle. The employee was not wearing his seatbelt at the time. The employer discharged him for his failure to wear his seatbelt.

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

The commission finds that the employee's failure to wear his seatbelt did not constitute more than an error in judgment or ordinary negligence on his part. The employee had not been warned in the past for failing to wear his seatbelt. Indeed, the record did not reflect that the employee had been subject to any disciplinary action during his ten years of employment with the employer. The employer made a valid business decision in discharging the employee, but did not establish that his discharge was for conduct that rose to the level of a willful and substantial disregard of the employer's interests.

The commission therefore finds that in week 31 of 2005, the employee was discharged but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 31 of 2005, if he is otherwise qualified.

Dated and mailed January 26, 2006
derksri . urr : 132 : 1 : MC 662  MC 695  MC 699

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility. The ALJ noted that this was a telephone hearing. The ALJ generally indicated that he was skeptical of the employee's claim that medication may have affected his thought patterns when he was speaking to the insurance carrier. The commission agrees with the ALJ that the employee's claim that he was wearing his seatbelt just prior to the accident was not credible. However, the commission concludes that the employee's actions did not rise to the level of misconduct connected with his work.

DAVID B. FALSTAD, Commissioner (dissenting):

I respectfully dissent from the majority opinion.

The employee violated federal and state law, and the employer's policy, by not wearing his seatbelt. Further, the employer held a safety meeting on May 20, 2005, at which time it reiterated and emphasized the requirement that drivers wear seatbelts. Less than two months after that meeting, the employee was in an accident and was not wearing his seatbelt. The evidence does not indicate that the employee inadvertently failed to use his seatbelt. The evidence in fact suggests not only that the employee intentionally did not wear his seatbelt, but that he did not wear his seatbelt half the time. This was not a one-time error in judgment. This was a repeated failure to follow federal and state law, and the employer's policy, that was discovered due to an accident the employee had in the employer's vehicle. The employee placed himself in danger of increased injury or death by failing to wear his seatbelt, and exposed the employer to the additional insurance costs.

Further, if the employer had suggested or directed that the employee not wear his seatbelt, and the employee quit his employment based on such suggestion or directive, the employee would have been eligible for benefits pursuant to Wis. Stat. § 108.04(7)(b). Yet, when the employer affirmatively directs the employee to obey the law, and the employee disregards that directive, the employee is found to be entitled to unemployment insurance benefits.

/s/ David B. Falstad, Commissioner

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