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

STEVEN L HARTMAN, Employee

ALL WAYS TRANSPORTATION & LOGISTICS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07605977WK


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 approximately three months, most recently as a truck driver, for the employer, a transportation business. His last day of work was August 16, 2007 (week 33), when the employment relationship ended.

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

The employer provided a work schedule to the employee which allowed him to be home every weekend. On one occasion the employee agreed to perform work duties which required he drive during the weekend. Other than that single incident, he was home every weekend during the duration of the employment relationship. The employer's business operated under federal rules which allowed it to schedule drivers for no more than 70 hours of driving within any eight day period.

On the morning of August 16, 2007, the employee was operating one of the employer's trucks in Darien, Wisconsin, waiting for an assignment because the load he was scheduled to pick up had been cancelled. At approximately 10 a.m., the employer contacted him and directed him to pick up a load in Illinois and drive it to Cleveland, Ohio. The employee refused, explaining that he did not have enough remaining legal hours within his 70 hours to perform the task. The employer explained that there were no other assignments available for him. The employee replied that he would go golfing. The employer told him to return his truck to the workplace and clean out his personal belongings from the truck as he would be fired when he returned. The employee complied with this direction. He never again performed wage earning services for the employer.

The employee argued that he was discharged from his employment. The commission agrees. There is nothing to support a conclusion that the employee was aware that he would be discharged for refusing the assignment. The employer had worked with the employee to accommodate his schedule in the past. The employer did not inform the employee he would be discharged for refusing the load. The employer did not state that it had a policy that informed workers that they could be discharged for refusing a single load. In addition, the employee did not refuse the load as much as point out that there was a legal impediment to his completing the load. The employee specifically informed the employer that he did not have enough hours to legally complete the load. The employer disagreed that he did not have sufficient hours at the hearing but at the time the employee brought this up to the employer as the reason he could not take the load, the employer never went over his hours with him or suggested any alternative. It would be reasonable for the employee to assume that he would be given another load when additional work became available. Under the circumstances, the employee did not quit his job but was discharged by the employer.

The next issue is whether the employee's discharge was for misconduct connected with his work. The employee in this case refused a load because he believed he did not have the hours available to legally complete the load. The employee voiced his concerns to the employer, but the employer merely said there was no other work at the time. As such, the employee's actions did not evince such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 33 of 2007, the employee was discharged by the employer, but that his discharge was not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 33 of 2007, if otherwise qualified.

Dated and mailed March 6, 2008
hartmst . urr : 145 : 1 MC 657  MC 699

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but reverses as a matter of law.

 


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