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

ROY C PALMER, Employe

ANR ADVANCE TRANSPORTATION CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602485MW

On March 20, 1998, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer timely filed a request for hearing, which was held on April 27, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On May 18, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer's representative filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in this case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately five days as an over-the- road driver for the employer, a transportation company. The employer discharged him on March 2, 1998 (week 10), for having abandoned his truck in Cleveland and taken a bus home. The commission concludes that this was misconduct by the employe, and so reverses the appeal tribunal decision.

The circumstances leading to the employe's abandonment of his rig are as follows. He arrived in Cleveland at 1:30 p.m. on Friday, February 27, to take a load from there to Kentucky. The employe telephoned the employer's dispatch to indicate he was at the pickup point. A dispatcher gave the employe a short assignment to do while the Cleveland-Kentucky load was being prepared. It was to transport a load of steel from one point to another in the Cleveland area. The employe went to the pickup point for the steel, and was loaded and ready to go at 5:00 p.m. The directions to the drop-off point for the steel given by individuals at the steel loading site conflicted with those given the employe by the employer's dispatcher. The employe telephoned the dispatcher to tell her that. The employe spoke with a different dispatcher of the employer, who gave the employe a third set of directions to the drop-off site.

By late that night, the employe had not found the drop-off site. He again telephoned the dispatcher, and received another set of directions. The employe still was unable to find the drop-off site by 2:30 a.m. He slept for a few hours and then continued to try to find the drop-off site. By 9:00 a.m. he still had been unable to do so. At this point he telephoned his wife, and had her send him a bus ticket for his trip from Cleveland back to Milwaukee. The employe left his rig at the bus station in Cleveland. When the employer found out the employe had returned to Wisconsin and had left his rig in Cleveland, the employer discharged the employe.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The commission believes that the employe's abandonment of his rig meets this standard. The commission acknowledges that the employe faced difficulties in trying to find the drop-off site for the load of steel. The employe had several options, though, which were significantly better than simply abandoning the rig. The employe could have waited until he was able to contact the employer by telephone and determine what the employer wanted him to do at that point. The employe also could have returned the load of steel to its point of origination. Simply abandoning the rig and the load at a bus station, however, is so grossly negligent as to constitute misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 10 of 1998, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 10 of 1998, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: August 27, 1998
palmero.urr : 105 : 1 MC 658

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. Such conferral is required where the commission is considering reversal of an appeal tribunal decision and credibility was a factor in the administrative law judge's fact-finding. In this case, the commission does not disagree with the administrative law judge's credibility assessments; rather, the commission concludes that as a matter of law the employe's abandonment of his rig in the circumstances he testified to was misconduct for unemployment insurance purposes.

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