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

LARRY C SMALL, Employee

FIRST SUPPLY LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10202925EC


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 11.5 years as a driver for the employer, a wholesale plumbing, heating, and air conditioning business. He was discharged on August 18, 2010 (week 34).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

The employee, who used his commercial drivers license to performing driving duties for the employer, was subject to federal regulations governing motor carriers and their operators.

These regulations require that operators have at least a 10-hour break between shifts.


In April 2006, the employee was warned and suspended for failing on more than one occasion to observe this 10-hour requirement. The warning issued to the employee stated that, "You must be off the clock for a min[imum] of 10 1/2 hrs to be safe. No less than 10 hrs 30 min."

Attached to this warning was a document titled "Hours of Service Regulations for Commercial Truck Drivers," which stated as follows, in relevant part (emphasis added):

The following is a summary of the hours of service regulations that apply to truck drivers for First Supply LLC.

1. Maximum of 11 hours of driving in a shift
2. All driving must occur within the first 14 consecutive hours of on duty times (Breaks do not extend on duty time)
3. Minimum of 10 hours off-duty between shifts

Simply stated, truck drivers may drive up to 11 hours in a shift but may not drive beyond the 14th hour after coming on duty. The 14-hour period may not be extended with off-duty time such as meal breaks or fuel stops. Each duty period must begin with at least 10 hours off-duty. ...
Drivers who must maintain log books should ensure that the hours which they log match the hours on their time sheets.

On October 12, 2009, the employee was again suspended for failing on four occasions in a one-month period to comply with the 10-hour requirement.

In the document accompanying this suspension, the employer stated as follows, as relevant here:

It is unacceptable to be non-compliant w[ith] DOT on duty rules. Non-compliance may result in large penalties for company and driver.

You may not start back until you have been off duty for at least 10 hrs and 30 min.

Next offense will result in immediate termination.

The employee was involved in an accident in April 2010. He was subsequently placed on a last chance agreement (exhibit #3) for preventable accidents and hours of service violations.

On June 8, 2010, all of the employer's drivers, including the employee, were given a document (exhibit #4) setting forth certain requirements. Included was the requirement that drivers:

b. Strictly adhere to DOT regulations relating to hours of service....

i. Minimum of ten (10) hours off-duty between shifts....

c. Adhere to DOT regulations relating to log book maintenance. Log book entries must agree to the minute to punches in and out on time cards...

On July 29, 2010, the employee punched out at 4:33 p.m., and then punched in on July 30, 2010, at 1:45 a.m., a period of only 9 hours and 12 minutes. These are the same hours that the employee recorded in his log book.

On August 12, 2010, the employee punched out at 4:27 p.m., and then punched in on August 13, 2010, at 1:45 a.m., a period of only 9 hours and 18 minutes.

The employee was discharged on August 18, 2010, for his history of violating the 10-hour requirement.

In his statement to the department adjudicator, the employee indicated that, for the violations on July 29/30 and August 12/13, he thought he had clocked out earlier than he had, and "I didn't look close enough on the time clock to see if I had at least 10 hours between my shifts." The employee also indicated in this statement that he understood from his warnings/suspensions in 2006 and 2009 that he was required to have a minimum of 10 hours off-duty between shifts.

At hearing, the employee testified (p. 9 of synopsis) that he "understood that I was supposed to have a 10-hour break between shifts."

The employee explains that the failure of his time records to show that he was off the required 10 hours between shifts resulted from recording his ending time in his logbook before then performing additional duties and punching out of work when these duties were completed.

First, although this could explain the incident of August 12/13 because his logbook for August 12 is not in the hearing record, it does not explain the incident
of July 29/30 because his logbook entries themselves reflect that there was less than 10 hours between his logbook logout time on July 29 and his logbook login time on July 30.

In addition, as the employer reminded the employee in 2006 and June 2010, hours which he recorded in his logbook were required to match exactly the hours on his time cards/punches.

The employee also testified that, when he received the warnings/suspensions, he did not understand that the 10-hour requirement "meant between shifts."

This, of course, is in direct conflict with the statement the employee gave to the adjudicator.

Moreover, the informational document the employer provided to the employee in 2006 states, "Minimum of 10 hours off-duty between shifts;" and the informational document the employer provided the employee in June 2010 states, "Minimum of ten (10) hours off-duty between shifts."

In addition, the 2009 warning/suspension document stated that, "You must not start back until you have been off duty for at least 10 hrs and 30 min."

The employee also explained in his hearing testimony that he interpreted the 10-hour requirement as corresponding to the top line of the daily logbook. However, the top line is denominated "Off Duty," and includes a timeline with 15-minute markings from midnight to midnight of the subject day. Clearly, this would correspond to the number of hours the driver was off-duty on a particular day, not to the number of hours between shifts which may span more than one day.

The ALJ held that the employee violated the relevant DOT regulation "due to a misunderstanding" of the regulation.

First, the regulation is very straightforward. As a result, and particularly given that the requirements of the regulation were explained to the employee by the employer more than once, it is not plausible that the employee would not have understood that the 10-hour requirement related to the time period between shifts. It should also be noted in this regard that the employee stated to the adjudicator that he understood from his warnings/suspensions in 2006 and 2009 that he was required to have a minimum of 10 hours off-duty between shifts.

In addition, at hearing, the employee testified (p. 9 of synopsis) that he "understood that I was supposed to have a 10-hour break between shifts," but, in keeping track of his compliance with this requirement, relied upon the times he recorded in his logbooks rather than the times he punched in and out of work.

First, this conflicts with the employee's explanation that he did not understand that the 10-hour requirement applied to the time period between shifts. In addition, as set forth above, this would not explain his actions of July 29/30, 2010, where his logbook entries themselves show less than 10 hours between shifts. Finally in this regard, the employee was reminded in 2006 and in June 2010 that hours which he recorded in his logbook were required to match exactly the hours on his time sheets/punches.

The employer suspended the employee twice and placed him on a last chance agreement in an effort to provide notice to him that his failure to comply with the 10-hour DOT requirement placed his job in jeopardy. The employer provided the employee ample opportunity to conform his actions to this reasonable expectation. Despite this, the employee continued, without plausible explanation, to violate this requirement, placing both his commercial drivers license and the employer's authority to operate as a motor carrier in jeopardy.

The commission therefore concludes that the employee was discharged in week 34 of 2010 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 the amount of $11,616 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount 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, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 34 of 2010, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $11,616 to the Unemployment Reserve Fund.

This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits. The employee will receive, or may have already received, a separate 'UCB-25 Notice of Federal Additional Compensation Overpayment' regarding any amount of FAC benefits that must be repaid.

Dated and Mailed April 15, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did confer with the administrative law judge before reversing her decision. The ALJ indicated that she found the employee's testimony that he did not understand the DOT regulation credible. However, as discussed above, the commission carefully reviewed this aspect of the case and reached a contrary conclusion. The ALJ indicated her credibility determination was influenced by the employee's testimony that he relied upon the entries in his log book, but, as noted in the commission's decision, this rationale could not excuse the violation of July 29/30, 2010, and, as the employee had been instructed numerous times by the employer, the hours he recorded in his logbook were required to match exactly the hours on his time sheets/punches. The ALJ indicated she perceived the employee to be an individual of average intelligence, which the commission has interpreted as an indication by the ALJ that she believed, based upon her observation of the employee at hearing, that the employee had the capacity to understand the DOT regulation.

cc: Attorney Brian H. Wright


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2011/06/03