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

WILLIAM T CONLEY, Employee

TRANSPORT CORP OF AMERICA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08000984MD


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 four years and eight months as an "over the road" truck driver for the employer, a trucking company. His last day of work was December 29, 2007 (week 52). The employer discharged him on January 2, 2008 (week 1).

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 employer has a written policy which provides that workers are required to submit vacation requests at least 14 days in advance of the date on which the vacation would begin. The employer also has a written policy which provides that once a worker accepts a load, the worker "must take the load to its destination as scheduled and unload unless specifically instructed otherwise by Operations." The policy prohibits relaying loads without prior authorization. The employee was aware of the employer's policies.

On December 21, 2007, the employee submitted a vacation request to his fleet manager for the time period beginning December 25, 2007, and ending January 2, 2008. The employee's vacation requests for the Christmas and New Year holidays had previously been granted with less than 14 days notice by former fleet managers. The employee's current fleet manager denied the employee's vacation request due to a lack of notice. The employee then asked his fleet manager if he could be at home on December 29 through December 31, 2007 and January 1, 2008. The fleet manager responded that he did not have enough "home time" accrued for such a long leave. The employee was scheduled to have "home time" from the evening of December 28, 2007, through the early morning hours of January 1, 2008. The employee wanted to be home on January 1, for his wife's birthday and their anniversary.

On December 28, 2007, the employee sent a QualComm message to his fleet manager advising that he would be available for work on January 2, 2008, after his "home time." The fleet manager again responded that the employee had not accrued enough "home time" to be absent for that long. Later that day, the employee received a QualComm message from the planner permitting the employee to relay a load at the Janesville terminal that he just picked up in Sturtevant, Wisconsin. The load was ultimately to be delivered to New Jersey. The planner advised that the employee could take a different load from the Janesville terminal on the afternoon of January 1, 2008. The employee accepted the new load. Later that day, the employee was advised by the second-shift fleet manager and the night manager that he did not have authorization to relay the Sturtevant load at the Janesville terminal. The employee responded that he had received permission from the planner along with a new load assignment. The night manager denied that there was any record of a new load assignment for the employee and again advised that he could not relay the Sturtevant load at the Janesville terminal. The employee was advised that he would be discharged if he relayed the Sturtevant load.

On December 29, 2007, the employee arrived at the Janesville terminal and relayed the Sturtevant load. He submitted a macro to his fleet manager via QualComm advising that his trip was complete and the load was relayed. He also advised that he would be available for work again on January 2, 2008. The fleet manager responded that the employee's trip was not complete and warned the employee that if he relayed the Sturtevant load he would be discharged. The employee responded that he was relaying the Sturtevant load and would be available for work on January 2, 2008. The fleet manager then told the employee that he would put the termination paperwork "through on Monday" and instructed the employee to clean out his truck. On January 2, the employee arrived at the Janesville terminal and was advised that his employment had been terminated for failing to comply with the employer's policy.

In this case, both the parties considered the employee to have been discharged. However, the employee did have the option to remain working if he followed the employer's directive and not relayed the Sturtevant load. The employee chose to relay the load even though he was aware that he would no longer be able to continue working for the employer if he did so. The employee's actions were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes the employee quit. The only reason that the employee had for quitting was that he wished to spend more time at home to celebrate his wife's birthday and his anniversary. The employee did not make this scheduling request in a timely manner pursuant to the employer's policy. The employee did not establish that his quitting was with good cause attributable to the employer or for any other reason that would allow immediate benefit payment.

The commission therefore finds that in week 6 of 2008, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 6 of 2008, the employee voluntarily terminated employment with the employer within the meaning of Wis. Stat. § 108.04(7)(a) and that his quitting was not for any reason that would constitute an exception to benefit suspension under the statutes.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 6 of 2008, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed July 23, 2008
conlewi . urr : 145 : 1 VL 1007.01 MC 626

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee argues, in his petition for commission review, that he disagrees with the employer's decision. The employee states that the employer failed to comply with the subpoena to bring all documents and communications between the employee and the employer between December 20, 2007 and December 28, 2007. The employee argues that the employer's response, that all messages are erased, is incorrect. The employee argues that his messages were extremely important because he did what he was told to do and as a result, his discharge was not for misconduct. The ALJ specifically found that the employee received a message from the planner permitting the employee to relay the Sturtevant load. The employee testified that he was later told that the employer had no record of this message and he was also told that it would be a "career decision" if he relayed the load. The employee did so anyway, despite the employer's insistence that he not relay the load, and take it to New Jersey. Thus, the ALJ's findings are based on the testimony of the employee. The ALJ viewed the employee's behavior as insubordinate. However, the commission concluded that the employee quit when he acted in a manner that he knew would result in the end of his employment.

The employee argues that he had the right to accept or reject any load. However, the employee knew in this instance that he had accepted the load and that there was some disagreement about whether he could relay it or not. The employee was also aware that he would be discharged for refusing to take the load and his actions in this regard were inconsistent with the continuation of the employment relationship.

cc: Transport Corp. of America, Inc. (Janesville, Wisconsin)


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