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

ROBERT J POLLOW, Employee

SYSCO FOOD SERVICES OF EASTERN WISCONSIN LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601005MW


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 food and supply distributor, for five years as a delivery driver. His last day of work was January 8, 2007. He was discharged on January 9, 2007 (week 2).

Department of Transportation rules provide that a driver cannot exceed 14 hours of on-duty time during the course of the day. The rules contain an exception whereby a driver can have 16 hours of on-duty time one day a week, provided certain conditions are met.

On January 8, 2007, the employee was assigned a new route that took him to Illinois. The employee got lost, resulting in a substantial delay. During repeated telephone conversations the employer instructed the employee not to log over 16 hours and stated that if he reached that point he should log off and the employer would send someone to get him. When the employee relayed that his truck was running out of fuel, the employer told the employee to try to get to a gas station, but reiterated that if he could not do so within the 16-hour limit, he should just pull over.

At 6:00 p.m. the employer called the employee and asked him how much time he had left on his Tripmaster, an on-board computer that monitors the driver's time. The employee responded, "a little bit." The Tripmaster only displays time up to 14 hours and did not show how much time was remaining. The employer reminded the employee to shut down at 16 hours, log off and wait.

The employee called the employer at 7:00 p.m. from a gas station. The employer asked if he had logged off in 16 hours, and the employee stated he had. The employer asked the employee if he had driven after logging off, and the employee indicated that he drove to the gas station. The employer responded that this defeated the whole purpose, and instructed the employee to wait to be picked up.

The following morning the employer accessed the employee's Tripmaster and determined that the employee had logged on at 2:36 a.m. and logged off at 6:53 p.m., for a total of 16 hours and 17 minutes on-duty time. The employee had then driven several minutes more to get to a gas station.

The employer discharged the employee for driving over hours and failing to follow orders. 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 testified that he believed his 16 hours ended at 6:50 p.m., and that he was trying to get fuel for the trailer and accomplish as much as possible by then. The employee intended to stop at 16 hours but lost track of time. He indicated that he was lost and "in a haze." The employee had no prior history of driving over hours and had not been specifically warned that failure to log off in time would cost him his job.

The employee was negligent in failing to ensure that he logged off within 16 hours, especially after having been repeatedly told to do so by the employer. However, in order for negligence to rise to the level of misconduct it must be so egregious as to be tantamount to an intentional failure. Ward v. Motor Castings, Inc. (LIRC, Sept. 15, 2006)(poor work performance not gross negligence, notwithstanding that employee was on a last chance agreement, where employee had never performed the particular assignment before); Cairns v. TTC Illinois, Inc., (LIRC April 7, 2000)(one incident of delivering fuel to incorrect tank plus two preventable driving accidents not gross negligence). The commission does not believe the employee's actions met that standard in this case, nor does it find that his conduct, which amounted to only a single instance, demonstrated a recurrent pattern of negligent acts that would give rise to a finding of gross negligence. See McGraw Edison v. ILHR Department, 64 Wis. 2d 703, 221 N.W.2d 677 (1974); Fitzgerald v. Globe-Union, Inc. 35 Wis. 2d 332,151 N.W.2d 136 (1967).

The commission, therefore, finds that in week 2 of 2007, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 2 of 2007, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed September 7, 2007
polloro . urr : 164 : 1  MC 660.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that, while she had no demeanor impressions to impart, she concluded that the employee was negligent and that his actions were not reasonable. The commission agrees that the employee was negligent but, for the reasons set forth in its decision, does not find that he engaged in gross negligence, such as would warrant a finding of misconduct.

cc: Attorney Al Seneczko


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