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

MARK A MAYER, Employe

NATIONAL BENEFIT PLAN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98605755MW

On August 26, 1998, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing the immediate eligibility for unemployment insurance. The employe filed a timely request for hearing on the adverse initial determination, and hearing was held on September 16, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On September 22, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge regarding matters of credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately five months as a truck driver for the employer, a heat treating business. His last day of work was August 3, 1998 (week 32), at which time he voluntarily terminated his employment. The commission does not believe the employe's quit was with good cause attributable to the employer, and so reverses the appeal tribunal decision.

On the employe's last day of work, the employer gave him an assignment which had the potential of requiring him to be away from home that night, and until the following day. The employe refused to take the load, indicating that his family was more important to him. The employer then told him "good bye," and the employe did not work for the employer thereafter.

The first issue is whether the separation was a quit or a discharge. It was a quit, since the employe could have avoided the separation by taking the load. A quit for unemployment insurance purposes includes conduct inconsistent with an intent to maintain the employment relationship, and the employe's refusal to take the load falls within that category.

The next issue is whether the quit was with good cause attributable to the employer, as found by the administrative law judge. The administrative law judge reasoned that the employer's assignment had the potential for violating a "significant and material condition" of the employe's employment. Even assuming that the condition was important to the employe, an isolated assignment in breach of that agreement does not necessarily automatically give an employe good cause attributable to the employer for a resulting separation. In this case, the employer's practice was not to send its local drivers, of which the employe was one, on runs which would require the driver to be gone overnight. There could be occasions, though, as infrequently as once a year, where a local driver would have to stay out overnight. The employer had a petty cash fund for drivers in that circumstance, and the employer in this case made such funds available to the employe. Further, the potential for the employe's having to remain out overnight was in part due to the employe's improper loading of the goods he was to deliver. Finally, the employe exaggerated the times it would take him to drive to the drop-off points for the loads (Woodstock, Illinois and East Chicago, Indiana).

The commission therefore finds that, in week 32 of 1998, the employe terminated his work but not with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b). The commission also finds that the employe was paid benefits in weeks 32-36 and 40-45 of 1998, totaling $3,011.00, for which he was ineligible 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 must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f), the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 32 of 1998, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employe must repay $3,011.00 to the Unemployment Reserve Fund.

Dated and mailed: February 2, 1999
mayerma.urr : 105 : 1 VL 1039.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge indicated that he accepted testimony from the employe to the effect that the employe had an oral agreement with one of the employer's high-level managers that the employe could not be assigned an overnight run without the employe's consent. The employer had testified that, while such runs were rare for its local drivers, yet they did occur approximately once a year or so. Regardless of which version of the matter is accepted, though, it remains the case that an isolated breach of that agreement will not automatically give an employe good cause for quitting the employment.

cc: ATTORNEY ARNOLD F LUEDERS III
NATIONAL BENEFIT PLAN

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