BEFOE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

DANA C GOIN, Employe

Involving the account of

NORTH CENTRAL TRUCKING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-200896 RL


On July 27, 1989, the Department of Industry, Labor and Human Relations (hereafter, Department) issued an Initial Determination which held that the employe was discharged for misconduct because he had an unauthorized passenger in the employer's vehicle in violation of company policy. The employe timely appealed. On September 19, 1989, a hearing was held on this matter before an Administrative Law Judge. On September 22, 1989 the Administrative Law Judge issued his Appeal Tribunal Decision which affirmed the Department's Initial Determination and found that the employe was discharged for misconduct connected with his work, within the meaning of sec.108.04(5) of the Statutes.

The employe timely petitioned the Commission for review of the Appeal Tribunal Decision. Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately three months as an over-the-road truck driver for the employer, a trucking business. His last day of work was on or about June 2, 1989 (week 22). After the employe's road trip some time in late May 1989, the employe requested time off to be with his wife who was having an operation for cancer. The employer agreed and the employe was to call the employer when he was available to return to work. The employe called the employer on June 5, June 7, June 9, June 12, June 14, and June 16-19, 1989 asking if work was available. On June 19, 1989 the employer informed the employe that a delivery run was available but the employe declined when he learned that only cab-over trucks were available for the run. It was the employe's understanding at the beginning of his employment that he would not accept work if the employer offered cab-over trucks.

During the week of June 19 through 24, 1989 (week 25) the employe initiated a claim for benefits with an unemployment office. On June 26, 1989 (week 26) the employer telephoned the employe informing him that he was discharged because an insurance company spotter noticed an unauthorized rider in the employe's truck.

Prior to taking testimony, the Administrative Law Judge reviewed the issues with both parties. The employer's position was that the employe had been discharged for misconduct connected with his employment on June 26, 1989. The employe disputed this position believing instead that he had been laid off prior to June 26, 1989. Upon review of the record, the commission believes that the issue of misconduct, pursuant to section 108.04(5), need not be addressed if the employe was separated from his employment prior to June 26, 1989. Thus, the issue is whether the employe was separated from his employment prior to June 26, 1989.

Here, the employe began a personal leave after June 2, 1989 that was to end by mutual agreement when he again notified the employer that he was ready to resume work. Such leave of absence ended when he telephoned the employer on June 5, 1989 asking if work was available. Throughout the next two weeks in June 1989 the employe sought work from the employer but to no avail. Such failure by the employer to provide work had the effect of severing the employment relationship constituting a layoff for an indefinite period beginning in week 23 of 1989.

The Commission therefore finds that in week 23 of 1989 the employe was discharged, but not for misconduct connected with his employment, within the meaning of sec.108.04(5) of the Statutes.

DECISION

The decision of the Appeal Tribunal Decision is reversed. Accordingly, the employe is eligible for benefits as of week 23 of 1989 if he is otherwise qualified.

Dated and mailed October 29, 1990
135 : CD0528  VL 1007  SW 800

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


MEMORANDUM OPINION

The Commission recognizes but does not have jurisdiction to resolve the issue of whether the employe failed, with good cause, to accept suitable work when offered by the employer in week 25 of 1989, pursuant to sec.108.04(8)(a) of the Statutes. However, if the commission did have jurisdiction it would conclude that the employe's refusal of work in week 25 of 1989 was with good cause because the employe had an agreement with the employer at the time of hire that he would use only conventional trucks for his trips.

The Commission also recognizes that certain types of on-call work employment relationships are deemed continued even where no assignments of work are provided for weeks at a time. Here, however, in the absence of evidence to the contrary, the commission believes that the frequency of the employe's requests for work in the first two weeks of June do not suggest a continuation of employment but instead a severance and that the employer's subsequent attempt at assignment was an offer of new work.

NOTE: The commission reverses the appeal tribunal decision as a matter of law and does not dispute the administrative law judge's credibility assessment of the witnesses.


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