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

JOSEPH A SCHROEDER, Employee

PAPER TRANSPORT OF GREEN BAY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402897AP


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a trucking business, for about six months as a driver. His last day of work was September 25, 2006 (week 39).

The employee was generally assigned to drive one specific truck that had manual transmission. On September 25, 2006, the employee had a personal appointment and could not report to work until late in the day. In the mean time, the employer asked another driver to handle a route using the employee's truck. When the employee reported for work, the employer gave him an assignment in a different truck, but the employee complained that he did not want to drive that truck because it was an automatic and he was used to a manual. The employer told the employee it was not much different and that it would provide him with some training on how to handle the truck.

The employee also told the employer that he had left his wallet, containing his driver's license and physical card, as well as his logbook, in the other truck, and he could not drive legally without those items. The employer stated that it could make copies of his CDL and physical card and could reconstruct his log book out of records so that he could drive legally. The employee nonetheless refused to take the load. The following day he was discharged for refusing work.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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' within the meaning of the statute."

The employee argued that the employer was asking him to drive illegally and that his refusal to take the load under those circumstances was not misconduct. The commission disagrees. The employer informed the employee that it had his documents on record and could make a photocopy of his CDL and physical card. The employer testified that if the employee was stopped by police and presented a copy of his CDL, the police would simply run it to make sure it was valid. While the employee disputed this, and insisted that there are penalties for driving without the "physical" CDL card, the employee's belief was based on a misreading of the Wisconsin Commercial Driver's Manual, which contains a requirement that drivers obtain a CDL, but does not specify that a driver must have the original CDL card in his possession at all times.

With regard to the logbook, the employer informed the employee that his logbook could be recreated from the employer's records in order to fulfill the legal obligation that he have a current logbook. Although the employee argued that the employer did not have access to his most recent records, the employer indicated that it has satellite tracking and could have gone back and recreated logs for the last seven days. Moreover, even assuming the employer was unable to recreate the employee's most recent records, federal regulations provide an exception for drivers who have current records but do not have them with them when asked. The regulations specify that a driver failing to have possession of a record of duty status, but who has completed records of duty status up to that time for the six previous days, will be given the opportunity to make the duty status record current. 49 CFR Ch. III § 395.13(3).

Based on the forgoing, the commission is unpersuaded that the employer asked the employee to drive illegally. Further, the record indicates that the employee's chief concern was not with his logbook or license, but with his unhappiness about driving a different truck which did not have manual transmission. The employee's refusal to take the load on that basis was unreasonable, particularly given the employer's offer of training. The employee was aware that refusing a load was grounds for immediate discharge, and the commission concludes that his actions evinced a deliberate and substantial disregard for the employer's interests.

The commission, therefore, finds that in week 39 of 2006, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 40 through 46 of 2006 in the total amount of $2,610, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 36 of 2006 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. He is required to repay the sum of $2,610 to the Unemployment Reserve Fund.

Dated and mailed March 1, 2007
schrojo . urr : 164 : 1  MC 640.03 - Insubordination, Disobedience - employee refused assignment to drive different truck than the one he usually drove - his objections, that his CDL and log were in other truck so he could not drive legally, rejected - discharge for misconduct 

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge was unable to impart any impressions of the demeanor of the witnesses which assisted her in reaching her decision.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set overpayment of U.I. and other special benefit programs that are due to this state, another state, or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P.O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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