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

DOUGLAS M ELLEDGE, Employee

CENTRAL PROCESSING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003031WR


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 about seven years as a dump truck driver for the employer, a redi-mix and concrete products business. His last day of work was on June 22, 2007. On June 26, 2007 (week 26), the employer discharged the employee after he reported that he had received a citation for operating his vehicle while intoxicated on June 23, 2007.

The employee must have a CDL to perform his normal work for the employer. Just after midnight on June 23, 2007, traffic authorities issued the employee a citation for operating his personal vehicle while intoxicated. He was not working at the time.

The employer's written policy provides, in relevant part:

All employees that operate a motor vehicle owned or leased by the Company must maintain an acceptable motor vehicle record.

Employees must notify their supervisors of any violation or citation on the next working day. Notification is necessary even if the citation was issued while on their own time and in the employee's personal vehicle.

Any conviction of a major offense, as defined by law, may result in the loss of driving privileges for the Company, written disciplinary notice, change in job responsibilities, and/or possible termination.

This standard applies to all employees that have a CDL license, all employees that use a Company car, and all occasional drivers that run errands for the Company.

At the original hearing, held on August 14, 2007, the employee testified that he still had his CDL and regular license, the charge was pending against him, he had not been convicted and he was contesting the charge. The ALJ found that misconduct had not been established because the employee had not been convicted. The employer petitioned for review asserting that the employee had been convicted and lost his CDL license. On October 19, 2007, the commission remanded this matter for further hearing to allow the employer to present evidence of the employee's conviction and loss of license.

At the remand hearing, both sides presented documentation regarding the status of the employee's CDL license and his conviction. The evidence is confusing regarding exactly when the employee's CDL was officially suspended, and what charge the employee plead to. The employer asserted it was implied consent and the employee asserted it was operating while intoxicated. The employee testified that on October 11, 2007, he plead no contest to operating while intoxicated. The DOT documents seem to indicate he was convicted of implied consent on July 23, 2007. Exhibit 1. The employee's documents indicate he lost his CDL effective November 6, 2007, because he was convicted of operating while intoxicated. Exhibit 6. However, whether implied consent or operating while intoxicated, at some point after his discharge the employee lost his CDL subsequent to being issued a traffic citation on June 23, 2007.

In Albrecht v. Farm & Fleet of Monroe Inc., UI Dec. Hearing No. 05003647JV (LIRC Nov. 28, 2007), the commission stated that "criminal pleas, and even criminal judgments, are of no value to employers in proving misconduct under Wis. Stat. § 108.04(5)." The employee in Albrecht was discharged because he was absent from work due to his incarceration. The commission's decision requires an employer to demonstrate intentional conduct in disregard of the employer's interests that led to the separation. Albrecht is based, for the most part, on the language of Wis. Stat. § 108.101(4) which provides that judgments made in other proceedings are not binding in a UI proceeding. (1)

As to the employee's conduct in the present case, at neither hearing was the employee asked about whether he was drinking, let alone how much, or any other circumstances leading up to the citation. Given the lack of testimony as to the employee's conduct on June 23, 2007, and the commission's decision in Albrecht, the commission affirms the ALJ's decision.

The employer's policy states that a conviction may result in possible discharge. Yet, once the employee informed the employer, as required by the policy, that he had been charged, the employer fired him. The employer could have reassigned the employee to non-driving duties or suspended his employment pending the outcome of the employee's case, at which time the loss of his license most probably would have suspended UI eligibility. At the time of discharge, the employee had only been charged with driving while intoxicated. Even if he had been convicted, given Albrecht, that would not have been sufficient to establish misconduct. At the time of his discharge, the employee's CDL had not been suspended.

The commission therefore finds that in week 26 of 2007, the employer discharged the employee but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 26 of 2007, if he is otherwise qualified.

Dated and mailed February 1, 2008
elleddo . urr : 132 : 1 : MC 618

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

cc:
Central Processing Corp. (Custer, Wisconsin)
Douglas M. Elledge (Portage County Jail)



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Footnotes:

(1)( Back ) See also Goetsch v. State Dept. of Workforce Development, 2002 WI App 128 ¶¶ 6,7.

 


uploaded 2008/02/11