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


SCOTT W ROBINSON, Employe

TOMAH TRANSIT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201106LX


On July 18, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 27 of 1998 the employe was discharged and not for misconduct connected with his employment. As a result, benefits were allowed. The employer filed a timely appeal and a hearing was held before an appeal tribunal. On August 20, 1998, the appeal tribunal issued a decision which reversed the initial determination to find misconduct. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a trucking company, for about six months as an over-the-road driver. His last day of work was July 2, 1998 (week 27).

On June 12, 1998, the wife of the employer's owner dispatched the employe to take a load from Green Bay to Menominee. The employe explained that he had only two hours of sleep in the last 38 hours and was too tired to make another run and, further, that if he took the load he would be out of hours. The owner's wife responded that the employe should take the load anyway and log it as though he had enough hours to drive legally. The employe stated, "Fine, I'll do it then," and hung up the telephone. He proceeded to drive to Menominee as he had been directed. The following day the employer's owner told the employe he could not hang up the telephone on a dispatcher and that the employer would not tolerate this behavior in the future.

On July 2, 1998, at approximately 6:45 p.m., one of the employer's dispatchers directed the employe to take a load from Portage to Spring Green. The employe inquired about what he had to do the next day and was told that he had to be in Menominee at 6:30 a.m. The employe stated that he could not drive to Spring Green because he would be out of hours once he reached Spring Green and would not have sufficient down-time before going on to Menominee. The dispatcher stated that the employe should make the run and log it to show a break, to which the employe responded that he was tired of doing that and was not going to take the load. The employe then inquired as to why another driver was not handling the load, at which point the dispatcher admitted he had made a mistake and that, as a consequence, the employe would have to take the load. The employe hung up the telephone and returned to the employer's premises without taking the load.

When the employe reported back to the employer's premises that evening he was told to clean out his truck because he was done. The question to decide is whether the employe was discharged for 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 employer contended that the employe's actions in hanging up the telephone on dispatch on two occasions amounted to misconduct. The commission disagrees. While hanging up the telephone on a representative of the employer is inappropriate conduct which might ordinarily be considered misconduct, here the employe testified without rebuttal that in both instances he did so after having been directed to drive illegally and falsify his logs. The commission believes that the employer was at fault for asking the employe to engage in illegal conduct and that, given the circumstances, the employe cannot be blamed for becoming upset and terminating the telephone conversations abruptly.

The employer also indicated that its decision to discharge the employe was based, in part, upon having received a complaint from a customer that the employe caused a commotion when a load was not ready on time. However, the employe denied that such an incident occurred and the employer presented no competent evidence to the contrary.

Under all of the circumstances, the commission does not believe that the employe was discharged due to any actions on his part that amounted to misconduct, within the meaning of the law.

The commission, therefore, finds that in week 27 of 1998 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits as of week 27 of 1998, provided he is otherwise qualified. He is not required to repay the sum of $1,740 to the Unemployment Reserve Fund.

Dated and mailed: November 2, 1998
robinsc.urr : 164 : 6 MC 640.05 MC 640.12

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission consulted with the administrative law judge regarding her impressions of witness credibility and demeanor. The administrative law judge indicated that she had doubts about the employe's claim that the owner's wife asked him to falsify his logs, since he did not explain this to the employer's owner when he was told that hanging up the telephone on dispatch would not be tolerated. However, the commission does not consider the employe's failure to tell the employer's owner that his wife asked him to falsify his logs to be a compelling reason to disregard the employe's unrebutted testimony that such a request was made. The administrative law judge also indicated that, in the second instance, the employe could have suggested adjusting the pick-up time for the load in Menominee in order to resolve the problem of having insufficient down-time between loads. However, the commission does not believe that the employe was obligated to propose solutions to the scheduling problems created by the employer's dispatcher, particularly after the dispatcher directed the employe to drive illegally and prepare illegal logs.


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