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

WILLIAM J DEHN, Employee

PANKRATZ TRUCKING LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09200340EC


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 almost one year as a driver for the employer, a trucking business. His last day of work was December 31, 2008 (week 1).

The initial issue to be decided is the nature of the separation of employment, whether the employee quit or was discharged.

On December 31, 2008, the employee and his partner were returning from a delivery to Brooklyn, New York. That day, the office manager spoke to the employee's partner by telephone about a delivery to be made on January 2, 2009. On January 1, 2009, the owner of the employer business received a telephone message from the employee. The message stated that the employee and his partner would not deliver the January 2, load but would report to work on Saturday, January 3. When the owner attempted to call the employee, the owner left a message about the January 2nd load. Because the employee did not return the call, the owner arranged for another driver to take the January 2nd load.

On January 2, 2009, the owner received a fax from the employee stating that he and his partner were ill. The owner decided to document the events that occurred from December 31 through January 2. He wrote a letter outlining the events according to his understanding and faxed it to the employee on January 7, 2009. A note was attached to the letter which stated that the letter needed to be signed, dated and returned before the employee would be dispatched. The employee responded with a letter informing the employer that he would not sign the letter, and requesting to know what his employment status was. The employee objected to the letter because his partner was ill so he could not take a load on January 1 or 2, but the letter made it appear that the employee did not wish to take the load because he wanted to go out on New Year's Eve. Further the employee believed that the letter indicated that that during one contact with the employer it sounded as though the employee had been drinking. The employee testified that he objected to the letter because it was half-truths and lies. On January 9, 2009, the owner notified the employee that he should clean out his personal items from the truck and that his employment was terminated.

The employee argued that he had been discharged. The commission agrees.

The employee in this case was told to sign a statement that he considered to be lies and half-truths and which he believed portrayed him in an unflattering light. The employer did not inform him that he could note his version of the events on the letter. The employee explained his concerns to the employer which thereafter discharged him. In Strassburger v. Wal-Mart Associates, Inc., UI Dec. No. 98401594GB (LIRC Nov. 25, 1998), the commission held that a claimant who refused to sign a warning when the underlying allegations were untrue and she was never informed that she was not admitting to the underlying conduct was discharged and not for misconduct. Likewise in the instant case, the commission cannot conclude that the employee's refusal to sign this paperwork that he believed was inaccurate evinced such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 2 of 2009, the employee was discharged by the employer but 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 2 of 2009, if otherwise qualified.

Dated and mailed June 8, 2009
dehnwi . urr : 145 : 6  MC 626  MC 640.03

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ. The ALJ indicated she found the employee deliberately obtuse and evasive, and believed that the employer was more straightforward. For example, while the employee was testifying he went into a tangent about the dispatcher talking to the co-worker and the co-worker talking to the claimant. The employee denied that they would talk about what the dispatcher told the co-worker and the ALJ did not find this credible as this was information that workers would talk about. The ALJ also found the employer credible when he indicated he was willing to change the form. The ALJ indicated that the employer had recently attended a class where he had been told to write things down. The ALJ thought the employer was trying to go through the proper channels, but that he was inexperienced in this kind of thing. The ALJ thought the employer was credible when he said he would have been willing to change the form. The commission found the employee credible because there were certain things in the letter that he would not want to admit to, so it was likely that the employee would have changed the letter had he known that option was available.

cc:
Attorney Alan A. Panek
Attorney Carol S. Dittmar


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uploaded 2009/07/06