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


THOMAS E SCHWALBACH, Employe

SHERWIN WILLIAMS CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hrg. No. 99000927BO


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a paint manufacturer and distributor, for about nine years as a semi driver. He was discharged from his employment on February 1, 1999 (week 6).

The employer requires its drivers to follow a number of policies, some of which are set by the Department of Transportation (DOT). For example, DOT rules provide that for every 10 hours of driving time a driver must take an eight-hour break, and that a driver can perform five hours of non-driving work, for a total of 15 hours of work in a day. DOT rules also provide that a driver cannot drive more than 70 hours in eight days. In addition, the employer imposes a 52 or 54 mile an hour speed limit on its drivers. Violations of the DOT rules mentioned above and of the employer's speed limits are considered "major violations." The employer also requires its drivers to keep accurate logbooks of their driving activities, and failure to do so is generally considered a "minor violation."

Each month the employer turns drivers' log books over to an outside firm which audits them to make sure they are in compliance with DOT regulations and company policies. The audit firm then notifies the employer if drivers have violations. Drivers with violations are sent written notification from the employer, which they are to sign and return to the employer. For each month with a "major violation," the driver is taken a step forward in the disciplinary process, which includes a verbal warning, written warning and probation, while each month without an offense takes the driver back a step.

On June 9, 1998, the employe was sent a notice indicating that he had two major violations for the month of April. On one occasion the employe drove 54.6 miles per hour and on another he exceeded the 10-hour driving limit by an hour.

On July 14 the employe was notified that he had one major violation and one minor violation for the month of May. An audit of his logs for that month revealed that the employe had driven 70.75 hours in eight days and, further, had failed to add up the mileage on one of the logs. The employe explained that he did not, in fact, drive more than 70 hours, but inadvertently neglected to include an hour of non-driving time on his log.

On August 31, 1998, the employe was sent a notice that he had one major and one minor violation for the month of July and that he was getting a verbal warning. The violation reports indicate that the employe exceeded the company speed limit on one occasion and failed to perform a tire safety check on another.

On October 12, the employe was notified that he had two major violations and three minor violations for the month of August and that he was on a written warning. The employe averaged a speed of 54.17 miles per hour on one day, failed to indicate on his logs whether he had performed a tire safety check on another occasion, and failed to note a daily inspection. The employe also failed to turn in a log one day, then turned in a duplicate log for another day. The employe explained that the duplicate log was actually the log pertaining to the missing day, on which he had inadvertently written the wrong date.

On October 21 the employer's safety coordinator met in person with the employe to discuss issues relating to speeding, the 70-hour rule, and missing logs. The employe was told that he would have to improve in these areas.

On October 30 the employe was sent a notice indicating that he had one major and two minor violations in September and was on probation. The employe had logged a speed of 55.71 miles per hour on one occasion, had incorrectly totaled his duty status logs on one occasion, and had omitted a daily mileage log.

On November 10 the employe again met with the safety coordinator, who reminded him of the need to abide by the company speed limit. The employe asked what would happen if he got another violation, and was told that the safety coordinator had never had anyone at this level before.

On January 11, 1999, the employe was notified that he had two major and one minor violations for November and was on probation. The violation sheet indicates that he drove more than 10 hours on one day, and drove on a day when he had been on duty more than 15 hours. Further, the employe incorrectly totaled his duty status hours.

In December the employe had one violation, in that he failed to initial changes made to fueling receipts. The employer did not send the employe a violation form for the month of December. Rather, on February 1, 1999, the employer telephoned the employe and notified him he was discharged.

The issue to be decided is whether the employe'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 employer contended that the employe engaged in misconduct by repeatedly violating its logging procedures. However, the mere fact that the employe made errors in his daily logs is not proof of deliberate misconduct, and the commission is unconvinced that the employe's logging violations evinced a deliberate disregard for the employer's interests. Most of the employe's "minor violations" were simply errors in addition or other failures in accuracy. Given that the employe was required to fill out approximately 30 such logs each month, it is not surprising that he sometimes made mistakes, and the employe testified convincingly that he tried his best to do a good job with the logs and did not deliberately make errors.

Regarding the "major violations," including speeding and exceeding hours, most of these were not egregious and, again, the commission is disinclined to conclude that they demonstrated wilful misconduct. While the employe exceeded the employer's speed limit on several occasions, his speeding was generally by only a fraction of a mile per hour. The employe testified persuasively that it was difficult to adhere to a 54-mile an hour speed limit in a zone where the posted limit was higher, and that he felt it created a safety hazard to do so. The employe also explained that, if he always adhered to a 54-mile an hour limit he would have been unable to get his loads delivered on time. Given all the circumstances, the commission is unpersuaded that the employe's actions in occasionally exceeding the employer's speed limit evinced misconduct. Finally, while there were three occasions on which the employe exceeded his allotted number of driving/working hours (a fourth such incident was proven to be an addition error) it was not shown that he did so by more than a small amount or that his actions in these instances were other than inadvertent. For all of these reasons, the commission concludes that the employe's logging violations were not undertaken in deliberate disregard for the employer's interests and, further, were not so egregious as to rise to the level of misconduct.

In concluding that no misconduct was established, the commission also notes that the employe was not adequately notified of the consequences for continued violations and was apparently unaware that his job was in jeopardy. The employe worked for the employer for nine years, during which time he had never seen anyone discharged for logging violations. Although the employe was sent written notification of his violations, he was under the impression that logging violations were not considered sufficiently serious by the employer that they could result in his discharge. When the employer's safety coordinator met with the employe to discuss logging violations, he did not explain to the employe the consequences for failure to improve in this area, even after the employe specifically asked what would happen if he received further violations. Where even the safety coordinator did not know what the consequences would be if the employe failed to improve, it cannot reasonably be found that the employe understood his job was in jeopardy.

The commission, therefore, finds that in week 6 of 1999, the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning as of week 2 of 1999, provided he is otherwise qualified. The employe is not required to repay the sum of $2,079 to the Unemployment Reserve Fund.

Dated and mailed June 22, 1999
willimi.urr : 164 : 5  MC 660.01  MC 692  MC 688.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that he considered the employe credible. The administrative law judge stated that the employe appeared to be a good and conscientious driver, and acknowledged that this was a close case which could be decided either way. The commission has no disagreement with the administrative law judge regarding witness credibility but, for the reasons set forth in the decision, concludes that he was not discharged for actions on his part which amounted to misconduct.


PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The majority finds that a mile or two above the maximum limit is not a serious problem. Part of the problem with averaging above the 52 miles per hour in 55 miles per hour zones and 54 miles per hour in 65 miles per hour zones is that not all of the miles are highway miles. Some of the driving would have been in 25 miles per hour zones. Therefore in order to average 54 miles per hour, the employe would have been driving even faster to maintain a 54 miles per hour average.

I have difficulty with the employe making errors on his logs for how many hours he had driven without sleep because he only needed to count to ten. He only needed to count to 15 for on duty hours. I find it possible that he can make errors in adding up mileage but not hours.

The employer's policy was implemented in April 1998 and reviewed at a driver's meeting on July 10, 1998 that was attended by the employe. The employe had notice of the policy. This 1998 policy was a revision of a policy adopted in 1996. In 1996, the employe had asked the safety coordinator "if they would really fire a driver because of logging problems. I believe Brad Bushur said they had never fired a driver for logging problems." The answer of course came shortly after the new program was implemented and did not indicate that the employer would not fire a driver for logging problems. The employe was warned about each violation and told he had been placed on probation.

The employe's attitude about the policy was poor. He said, "I may have gotten a copy of pages 3 & 4, but I don't believe I looked at them. The practice has been for me and most other drivers that 90% of the stuff they send us, we don't look at it. .I would have opened the envelope, saw what it was, maybe looked to see if I had any major or minor violations then thrown it away. That is if I looked at it. Most of the time I opened it up to see what it was and threw it out."

The employe had some months where he had no violations so he had the ability to fill out his log books. He was warned about his need to improve his record. He did not place a high value of the need to average 54 miles per hour or under. His violation of the employer's rule was a willful, wanton disregard of the employer's interests. The fact that truckers who work for other employers speed does not mean that the employe was free to speed. For these reasons, I would affirm the appeal tribunal decision.

__________________________________________
Pamela I. Anderson, Commissioner

cc: SHERWIN WILLIAMS


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