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


SHAWN R CAHILL, Employe

T T C ILLINOIS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200174EC


On January 15, 2000, the Department of Workforce Development issued an initial determination which held that the employe's discharge had not been for misconduct for unemployment insurance purposes. The employer filed a timely request for hearing on the adverse initial determination, and hearing was held on February 14, 2000 in Eau Claire, Wisconsin before a department administrative law judge. On March 1, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse 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 credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately two and a half years as an over-the-road truck driver for the employer, a driver leasing concern. The employer discharged him on September 3, 1999 (week 36), following an incident on August 28 in which the employe had been taken "out of service" because his log books were not current. The issue is whether the employe's failures overall were misconduct for unemployment insurance purposes; the commission concludes that they were, and so reverses the appeal tribunal decision.

The employer placed the employe on probation on August 19, 1998 for various infractions, including three tickets earlier that year for operating over weight, a speeding warning letter issued on May 4, 1998, and log violations. The employe's responsibility for the over weight tickets is mitigated, but only somewhat; it was the customer who would load the truck, not the employe. Drivers are supposed to weigh their trucks before getting to the state regulatory scales, though; the employe should have asked the customer where scales were he could use to weigh his truck, if the customer did not have a scale and the employe did not know where a nearby scale was.

The employe received a ticket on February 10, 1999 for operating over weight. He received another ticket on May 10 for an axle overload. Again, the employe is partially responsible for such failures.

The employe is responsible for an accident he had on March 11, in which he hit a car with his truck. The employe was in rush hour traffic when his foot slipped off the clutch, the truck lurched forward, and hit the car in front of him. The employe also was responsible for an April 12 ticket for a log book violation in Indiana.

The employer counseled the employe on May 11 regarding his poor driving/record keeping work for the employer. Nonetheless, the employe was pulled over on August 28 or 29, for either speeding or following too closely. At that time, he was "taken out of service" because his log book was not current, the most recent entry having been from two days previously. The employer's evidence on this matter was hearsay, but the employe confirmed it, conceding that his log book was not current because the employe had been in a hurry to get back to Wisconsin to pick up his kids, and he had "run out of hours" [legal hours to drive pursuant to DOT regulations]. Upon learning of this incident, the employer discharged the employe.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The commission must conclude that the employe's record in this case meets that standard. The employe had two instances of log book violations in less than six months, the second of which was substantial (two days out of date). The employe conceded that the second instance was intentional. The employe had several tickets in his last year and a half of work for operating over weight, failures for which the employe was partially responsible. Finally, the employe was completely at fault for the traffic accident he was in on March 11. This is simply too many violations in the time period in question, not to be misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 36 of 1999, the employe was discharged for misconduct for unemployment insurance purposes. The commission also finds that the employe was paid unemployment insurance totaling $3002, for weeks 9 through 18 of 2000, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1)(d). 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, yet it 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 36 of 1999, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. Department monetary computation form UCB-700, issued on January 4, 2000, is set aside. The employe must repay $3002 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed May 10, 2000
cahilsh.urr : 105 : 3 MC 689  MC 692

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ 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 case. The administrative law judge thought the employer had spoken with the employe on May 11 regarding the employe's poor driving record. The administrative law judge did not believe that the discussion was memorable, such that the employe would know his job was in jeopardy. Given the number of failures committed by the employe, though, and the substantial nature of his last failure, the commission must conclude, contrary to the appeal tribunal decision, that the counseling the employe received was sufficient warning to the employe to improve his driving record.


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