EDRICK A DUNN, Employee

MARTEN TRANSPORT LTD, Employer

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:

The employee worked for about nine weeks as a truck driver for the employer, a trucking company. His last day of work was on August 10, 2007 (week 32).

On August 7, 2007, the truck the employee was driving "blew a turbo."  The supervisor/dispatcher "repowered the load" with another truck to ensure timely delivery.  When told about this by the dispatcher, the employee began swearing, called the dispatcher an "ignorant, lying bastard" and said the dispatcher didn't know what he was doing.  The employee and dispatcher argued, at one point called each other a "motherfucker" and, according to the dispatcher, the employee then said, "I will come to Indy and settle this."  The dispatcher reported the incident to the employer, who discharged the employee for unacceptable language.  Under the employer's policy a driver may be discharged for use of threatening or abusive language or for insubordinate or disrespectful conduct.  The employee had received no previous warning for similar conduct.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employee denied that he did any more than exchange name calling with the dispatcher. The employer's witness admitted that swearing is common in the trucking profession because of the stress of the job.  The employer maintained that the employee's comments were different.  However, the employee had not been previously warned about swearing.  The dispatcher responded in kind.  Neither is the commission persuaded that the employee's comment about coming to Indianapolis could be regarded as a legitimate threat.

The commission concludes that the employee did not threaten the dispatcher.  The employee had not been placed on notice that swearing would place his job in jeopardy.  The employee was understandably frustrated with the business decision made by the dispatcher to give his load to another driver.  He vented his frustration at the dispatcher, which showed poor judgment but is apparently not uncommon.  The employer made a reasonable business decision to discharge the employee for this conduct.  However, the commission cannot find that the employee acted with any intentional disregard of the employer's interests.

The commission therefore finds that in week 32 of 2007, the employee was discharged by the employer, but that the discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed.  Accordingly, the employee is eligible for benefits beginning in week 32 of 2007, if otherwise qualified.

Dated and mailed May 2, 2008
dunnedr . urr : 178 : 1 MC 640. 05 ; MC 640. 15

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission discussed witness demeanor and credibility with the ALJ before determining to reverse.  The ALJ believed that both parties were swearing during the phone conversation.  He felt that the employee's comment about coming to Indianapolis went too far.  The commission does not perceive a threat in the remark.

cc: Marten Transport (Mondovi, Wisconsin)
Inga Dunn
Edrick A. Dunn, Dallas, TX

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uploaded 2008/06/20