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

TAFFY S COOLEY, Employe

MEAN TRUCKING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601582MW

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about nine months as a second driver in a team working for the employer, a trucking concern. The employe filed for unemployment insurance payments on January 12, 2000. Her last day of work was January 18, 2000 (week 4).

The initial issue to be decided is whether the employe quit or was discharged. If the employe quit, a secondary issue is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employe was discharged, a secondary issue is whether the employe's discharge was for misconduct connected with that employment.

When the employe and the primary driver completed a trip on January 18, the primary driver contacted the employer and told the employer he was quitting. The employe testified that she contacted the dispatcher, a third party company under
whose authority the employe operated. The employe asserted that the third party company would not allow her to drive alone. As a result, the employe believed that she was laid off.

The employer asserted that the employe failed to contact it to inquire as to whether the employer could find another driver or assist her in some way. While the employe did contact the dispatcher for work on prior occasions, the primary driver contacted the employer, not the dispatcher, to inform it that he was quitting. The owner specifically testified that he would have arranged things so that one of them could continue driving. In addition, the commission is not convinced that the employe intended to continue driving for the employer without the co-driver. The employe stated that she would not like to drive with a man she did not know, but might consider driving with a woman. While this is understandable, it also suggests that she was only willing to drive with the co-worker. The employe should have informed the employer that the dispatcher would not give her a load. She should have given the employer the opportunity to see if other arrangements could be made. The employer testified that they could. The employe's failure to contact the employer and inform it she did not have a co-driver was inconsistent with the continuation of the employment relationship and for unemployment insurance purposes amounted to a quitting. The employe did not assert nor demonstrate that she had a reason for quitting which would allow immediate unemployment insurance payments.

The commission therefore finds that, in week 4 of 2000, the employe terminated her work, within the meaning of Wis. Stat. § 108.04(7)(a) but that her quitting was not for any reason which would allow for immediate benefit payment.

The commission further finds that the employe was paid benefits in weeks 3 through 12 of 2000, totaling $1,906.00, of which $3 is included in the overpayment set forth on a previous overpayment notice, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 4 of 2000, and until four weeks have elapsed since the end of the week of quitting and she 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 is required to repay the sum of $1,906.00 to the unemployment reserve fund.

Dated and mailed August 8, 2000
cooleta.urr : 145 : 1  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the remand hearing. She indicated that she found the employe generally to be credible, but did not relate any specific reasons for her decision. The commission's credibility impression differs from that of the ALJ for the reasons stated in its decision. The commission believes that the employe's actions in failing to inform the employer of the situation with the dispatcher in order to give it an opportunity to resolve the situation was inconsistent with continuing the employment relationship and as such, amounted to a quitting.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

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