KRAIG D KALLIOINEN, Employee

ANDERSON LUBRICANTS 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. On August 16, 2006, the commission remanded this matter for further hearing for the purpose of obtaining additional evidence about whether the employee exceeded his hours on March 6 and 7 of 2006, and whether the conditions of his employment were substantially less favorable to him than those prevailing for similar work in his labor market. This hearing was held on October 17, 2006, before an ALJ of the department, acting on behalf of the commission.

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 the employer, a distributor of petroleum products, for approximately six weeks as a driver. His last day of work was March 4, 2006 (week 11).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee was scheduled off work on March 15. On the evening of March 15, the Michigan operations manager called the employee to schedule him for a run to Superior Wisconsin from Negaunee, Illinois on March 16. The manager informed the employee that he would have to travel from Negaunee to Iron Mountain Michigan, to pick up the tractor. The employee told the manager that he would call to let him know if he was going to take the scheduled trip. The employee did not return the call and the employer had to assign the trip to another driver.

The employee argued that if he took the trip, he would have exceeded the number of hours he was allowed to drive based on DOT regulations. The employer had someone else take the driver to Iron Mountain to pick up the tractor. The time required to drive from Iron Mountain to Superior and to Negaunee would not have required more hours than those allowed by DOT regulations. The employee was not aware that the employer intended to have someone drive him to Iron Mountain.

The employee submitted logs that demonstrated that on March 6 and 7 he did not have the required ten hours of rest before beginning his next routes. The employee thus was justified in his fear that he would be required to exceed the work times allowed by the DOT.

The employee argued that he did not quit. He additionally contended that he was discharged. More specifically, the employee contended that the employer was to call him with information regarding the trip. However, the employee was unable to sustain his contentions. The employee acknowledged that he talked with the operations manager on March 15. If he had concerns because the employer failed to call him again, he should have contacted the employer to question the employer about the status of his employment.

The courts have held that if an employment relationship is to be terminated by the employer, there must be something more in the record than the mere assumption or impression of the employee to the effect that he is being fired. An employee owes a duty to definitely ascertain his employment status before concluding that the employment relationship is fully terminated. Eisenberg v. Ind. Comm. & Planasch, Dane County Circuit Court, Case No. 116-225, January 5, 1966 and Rupcic v. Wis. Liquor Co., Inc. & DILHR, Dane County Circuit Court, Case No. 150-045, February 21, 1977.

Based on the above, the employee was not discharged. The employee quit his employment. However, shortly before the last assignment, the employee had been required to drive on two occasions without the required time off between driving assignments. The employer then gave him an assignment that would have exceeded the time he was allowed to drive without a break. The employer's actions in assigning the employee work that required him to exceed DOT regulations gave rise to good cause attributable to the employer for quitting.

The commission therefore finds that in week 11 of 2006, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 11 of 2006, the employee voluntarily terminated employment with the employer, but that his quitting was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 11 of 2006, if otherwise qualified.

Dated and mailed December 27, 2006
kallikr . urr : 145 : 1 VL 1039.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission reversed the ALJ in large part based on the information adduced at the remand hearing, which was not available to the ALJ when she made her decision.

cc: Anderson Lubricants, Inc. (Negaunee, Michigan)

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