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

ERVIN G WAALA, Employee

LMZ TRUCKING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06607744WB


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 one and a half years as a dump truck driver for the employer, a trucking company. His last day of work was November 20, 2006 (week 47).

The employee and other drivers periodically had problems with truck maintenance, and found that the employer was not receptive to their requests to have the trucks repaired. On November 25, 2006, the truck the employee was assigned lacked power, and he was unable to perform his job. The truck continued to be unavailable on November 16 or 17, 2006, and thus the employee was unable to work on those days. On Sunday, November 19, 2006, the manager informed the employee that the truck was available for him to use the next day. When the employee reported to work on Monday he discovered that the problem still existed with the truck. The employee returned the truck to the shop, and again did not work that day. The employee was offered a job with another employing unit on November 21, 2006, and he accepted it at that time.

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

The first issue is whether the employee's acceptance of work for another employer was a quitting. The critical question is the nature of the employee's layoff. The employee was unable to drive his truck on four scheduled work days due to mechanical failures. The employer attempted to fix the truck but the problem was not immediately resolved. There is no suggestion from either party that they believed the employment relationship was severed. Short term layoffs due to breakdowns or maintenance occur in many industries. Unemployment is intended to bridge the income shortfall. If the employer had not been actively trying to fix the truck or had given some other indication that the work interruption was going to be of a longer duration, the commission might find that this was an indefinite layoff. In these circumstances, the layoff was intended to be of short duration and both parties believed that the employment relationship continued during the layoff. Therefore, the employment relationship continued until the employee quit to accept other work.

The next issue is whether any quit exception applies.

There is no evidence that the employer was attempting to induce the employee to quit by failing to maintain the truck. The employee accepted other work in part because he was fed up with equipment failures, but the failures themselves did not prompt him to quit. He would have remained employed with the employer if he did not have another job offer. Therefore, the commission concludes that the employee quit to take another job that offered the same or greater number of hours.

The circumstances of the employee's quitting fall within Wis. Stat. § 108.04(7)(L), which provides an employee may be immediately eligible for benefits if he quit to take work which offered the same or greater number of hours. Thereafter, he must earn four times his weekly benefit rate in other covered employment to requalify. The employee requalified for benefits in week 2 of 2007.

The commission therefore finds that in week 47 of 2006, the employee voluntarily terminated work with the employer in order to accept employment, covered under state of federal unemployment insurance law, which offered the same or greater number of hours of work, within the meaning of Wis. Stat. § 108.04(7) (L), and that as of week 2 of 2007, the employee has earned wages in that subsequent employment equal to at least four times his weekly benefit rate.

The commission further finds that the employee was paid benefits in the total amount of $1,594.00 for weeks 47 through 52 of 2006, and week 1 of 2007; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 47 of 2006. The employee is again eligible as of week 2 of 2007. He is required to repay the sum of $1,594 to the Unemployment Reserve Fund.

Dated and mailed April 27, 2007
waalae . urr : 178 : 1   VL 1007  VL 1037

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission does not reverse due to any differing assessment of witness credibility. Instead, it reaches a different legal conclusion when applying the law to the same facts as those found by the ALJ.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. 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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