WILLIAM O JONES, Employee

MILLIS TRANSFER INC, 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 the employer, a trucking company, for about five years as a truck driver. His last day of work was October 23, 2009 (week 43). He was discharged on November 4, 2009 (week 45).

The employer has a policy which provides that "continuous violations of the Motor Carrier Safety Regulations regarding all items contained in Section 395 (Hours of Service)" may result in suspension and/or termination of employment.

In 2009 the employer was doing its safety report and decided to audit the employee's logbook because it appeared he had excessive miles. The employer discovered that the employee routinely falsified his log book to show that he drove fewer miles than he actually drove. The employee omitted entire trips from his log book. His actions were in violation of the Federal Motor Carrier Safety Regulations. The employee was suspended pending investigation, then discharged based upon that conduct.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employe's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employee admitted to falsifying his log books, but offered an explanation for doing so. The employee stated that two years earlier he mentioned not having enough hours to his supervisor, who told him to "just get it done." The commission does not find this explanation persuasive. At the hearing the employee's supervisor credibly denied that the employee told him he could not legally do the trips he was assigned, and denied ever having told the employee to do what he had to in order to make the delivery. Further, even assuming such conversation occurred, telling the employee he had to "just get it done" was not tantamount to directing the employee to falsify his logs, and the employee would not have been justified in reaching such conclusion. Finally, the commission notes that the employee did not offer this excuse to the employer when it suspended him for falsifying his log books. If, in fact, the employee believed he was acting at the employer's directive, it stands to reason he would have said so when it became apparent he might lose his job.

The employee testified that he considered himself a professional and understood the consequences of falsifying a log book. The commission believes that the employee bears responsibility for his own actions, and that his conduct in repeatedly omitting entire trips from his log book was undertaken in wilful and substantial disregard for the employer's interests.

The commission, therefore, finds that in week 45 of 2009, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 45 of 2009 through week 5 of 2010, and in weeks 7 through 12 of 2010, in the total amount of $6,507, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 45 of 2009 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $6,507 to the Unemployment Reserve Fund. This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits. The employee will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed May 20, 2010
joneswi . urr : 164 : 9 MC 630.09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about her impressions of witness credibility and demeanor. The administrative law judge indicated that she found the employee generally credible and that the supervisor was somewhat "slick" in his testimony. However, the commission finds credible the supervisor's testimony that he did not direct the employee to do whatever it took to make the delivery. Moreover, it does not believe that such statement, even had it been made, could reasonably be interpreted as a directive to engage in illegal conduct.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set overpayment of U.I. and other special benefit programs that are due to this state, another state, or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P.O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

Appealed to Circuit Court.

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uploaded 2010/06/11