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


GEORGE TELFORD, Employe

J B HUNT TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604247MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. Pursuant to authority granted in Wis. Stat. § 108.09(6)(c), the commission on its own motion sets aside the appeal tribunal decision in the above-referenced matter issued on June 22, 1999, and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about one year as a truck driver for the employer, a trucking company. He was required to have a Class A CDL and company policy required that he have a hazardous materials endorsement. His last day of work was December 18, 1998 (week 51), when the employer suspended his employment because he did not have a hazardous materials endorsement for his CDL.

The employe found out that he lost his hazardous waste endorsement when he went to renew his CDL. He did get a new CDL. However, he failed the hazardous materials test. The employe had studied for the test by taking the employer's in-house training and passed the employer's in-house test. The employe failed the test four times. He continued to study after he flunked it the first time and flunked it three more times. He eventually did pass it on the same day he was discharged by the employer, January 12, 1999 (week 3). The employe was let go because the employer needed a driver.

The issue to be decided is whether the employe's employment was suspended by the employer because a license issued by a government agency that was required by law in order to perform his customary work had been suspended, revoked, or not renewed due to his own fault. Wis. Stat. § 108.04(1)(f). The department correctly notes that prior court decisions and the commission's decisions require some blameworthy conduct on the part of the employe that leads to his failure to retain or obtain a license. Here, the employe took the employer's in-house test, he studied for the test, and flunked the test. Simply because an individual does not pass a test that is necessary for a license does not mean that it is the employe's fault.

The second issue is whether the employer suspended the employe's employment for good cause connected with the employe's work within the meaning of Wis. Stat. § 108.04(6). The commission finds it did not. The commission has held that "good cause," while a lesser standard than misconduct, still requires that "some blameworthy conduct must be shown on the part of the employe." See Voeltner v. Consolidated Freightways Corp., of Delaware, UI Dec. Hearing No. 91400173AP (LIRC May 5, 1992). In Mitchell v. Milwaukee Public Schools, UI Dec. Hearing No. 90604770MW (LIRC Nov. 23, 1999), the commission noted that:

'Other good cause' is a lesser standard than 'misconduct'. It can be found in cases in which there has been a single instance of negligence or poor judgment, even though in such circumstances the `misconduct' standard might not be satisfied. However, the Commission considers that it must be interpreted as involving at least some degree of fault or blameworthy conduct on the part of the employe. If an employer has failed to prove that an employe did anything wrong, the fact that the employer may have another good reason for suspending the employe will not provide 'other good cause connected with his employment' within the meaning of the statutes.

The commission therefore finds that in week 51 of 1998 employe's employment was not suspended by the employer because a license issued by a government agency that was required by law in order to perform his customary work had been suspended, revoked, or not renewed due to his own fault within the meaning of Wis. Stat. § 108.04(1)(f).

The commission further finds that the employe's employment was not suspended for good cause connected with his work within the meaning of Wis. Stat. § 108.04(6).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits, if he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed September 9, 1999
telfoge.urr : 132 : 6 AA 130 MC 676

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission reversed the ALJ not based on a differing assessment of witness credibility but as a matter of law. The commission on its own motion set aside the ALJ's decision because it determined an error had occurred. In a separate decision (UI Hearing No. 99604248) the commission agreed with the department's position in its petition that the evidence did not establish that the employe's loss of license was "due to the employe's fault" as set forth in Wis. Stat. § 108.04(1)(f). Since the facts of both cases are the same the commission does not believe fault has been established merely because a suspension of employment rather than a separation from employment is at issue. The commission has made the additional finding that the employe's suspension was not for good cause under Wis. Stat. § 108.04(6), as that was the statutory section upon which the initial determination was issued and the only issue, other than the potential overpayment, noticed for hearing in this case.

cc: EMPLOYERS UNITY INC

GREGORY A FRIGO
BUREAU OF LEGAL AFFAIRS


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