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

MICHAEL E ROLEWICZ, Employee

DIRTWORKS TRUCKING LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05202130EC


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 36 of 2005 and until four weeks have elapsed since the end of the week of quitting and he 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.

Dated and mailed February 24, 2006
rolewmi . usd : 115 : 1  VL 1080.22

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked about four months as a dump truck driver for the employer, a trucking business.

The employee quit his job with the employer by failing to report to work on and after August 30, 2005. The issue is whether this quitting was for a reason which would satisfy any exception to the quit disqualification.

The only exception which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." This has been defined as a real and substantial act or omission by the employer that reasonably justifies the employee's decision to become unemployed rather than to continue working. See, Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that he explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that he is considering terminating his employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Milw. Co. Cir. Ct. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999).

The employee asserts that his quitting was with good cause attributable to the employing unit because he brought safety deficiencies relating to the truck he was assigned to drive to the employer's attention but his concerns were ignored and the employer continued to expect him to drive an unsafe vehicle.

The administrative law judge (ALJ) did not credit the employee's testimony that the truck he was assigned to drive was unsafe or that any safety concerns he expressed to the employer were ignored. There is no persuasive reason in the record to overturn this credibility determination.

The employee admits in his testimony that, even though he was expected to indicate on a daily inspection report any repairs or maintenance that the truck needed, he failed to do so.

The employee relies upon five alleged safety deficiencies: all of the truck's tires were bad, it had a leak in the right side fuel tank, there was a leak in the airlines which operated the brakes, the air dryer needed a new filter, and the side hinge that holds the box on the frame was cracked.

The record shows that two new tires were purchased and installed on the truck by Pomp's Tires on August 26, 2005, and two additional new tires were ordered that day and installed on September 13, 2005. The employee testified that, even though two tires had been replaced prior to his last day of work, all of the truck's tires were bad. The employer testified that the truck had been purchased on or around July 30, 2005; although the tread was worn on the two tires replaced on August 26, the employer also replaced two other tires even though Pomp's had stated that these other two tires "were fine (1);" and none of the other tires needed to be replaced. It would not have made sense for the employer to have purchased a used truck with 18 tires that needed to be replaced. The commission agrees with the ALJ that the employer's version of events in regard to the tires is the more credible.

The employer testified that it first became aware that there was a pinhole leak in the right side fuel tank when the employee disclosed it on August 28, 2005; it did not affect the operation or safety of the truck, and it was repaired as soon as a welder was located who could perform the work. The employee testified that the leak existed when the employer purchased the truck, but he did not testify that he disclosed this fact to the employer prior to August 28 or that the employer had any other reason to be aware of it prior to that date. By waiting to disclose this leak until August 28, the employee did not provide the employer sufficient time to remedy this alleged defect prior to ending his employment.

The employer testified that there was a leaky airline for a few hours, but it was tightened up on August 26 and there was no further problem with it. The employee did not rebut this testimony.

The record shows that a new filter was purchased for the air dryer on August 26, and that the employer thought the employee was going to locate a wrench needed to install it, and the employee thought the employer was. Once the employer became aware that the employee was not going to be providing a wrench, the employer installed the new filter.

The employer testified that, although it was aware that there was a problem with the box on the original truck assigned to the employee, it was not aware that there was a problem with the box on the second truck. The employee testified that he told the employer about this problem when the employer contacted him on August 30 and asked why he had not shown up to work that day. Hence, even if the employee's testimony in this regard is credited, he did not provide the employer sufficient time to remedy this alleged defect prior to ending his employment.

The commission agrees with the ALJ, consistent with the above discussion, that the employee failed to show good cause attributable to the employer for his decision to end his employment.



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Footnotes:

(1)( Back ) The employee was present with the employer at Pomp's on August 26 but did not rebut this testimony.


uploaded 2006/02/28