Wis.LIRC UC Decision: Makowski - August 20, 1999 - MC 630.09 - Falsification of record; MC 692.02 - Off duty conduct; MC 692 - Violation Of Company Rule; Motor Vehicle - not informing employer commercial license suspended

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

BOLESLAW MAKOWSKI, Employe

R & L TRANSFER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001314JV

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 upon the applicable law, records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 14 months as a driver for the employer, an over-the-road trucking firm. His last day of work was on or about February 18, 1999 (week 8), when the employer discharged him for not having informed the employer that he had lost his Commercial Driver's License (CDL). Under the narrow circumstances of this case, the commission concludes that this failure by the employe was not misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

In early January of 1999, the employe received a letter from the Department of Transportation (DOT) stating that his operating privileges had been cancelled effective December 29, 1998. The stated reason for the cancellation was the employe's general physical/mental condition: "Obstructive sleep apnea syndrome." This diagnosis apparently was in error, but the DOT cancelled the employe's CDL nonetheless. The employe appealed the cancellation by DOT, but did not notify the employer that his operating privileges had been cancelled. On or about February 18, 1999, the employer learned of the cancellation, and discharged the employe for having failed to so inform the employer. By February 22, 1999 letter, the DOT informed the employe that he in fact was eligible for a CDL, with tanker, hazardous materials, and double or triple trailers endorsements.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. Generally, an employer should be able to expect its drivers to inform it of their loss of their CDL licenses. In this case, however, the employe had little or no understanding of the import of the cancellation notice from DOT. In his mind, the problem was simply DOT's failure to promptly correct the misdiagnosis of the employe in order that the employe be able to return to work. The employe therefore cannot be said to have intentionally kept from the employer his loss of his CDL license. Rather, the employe believed the loss was a mistake and was to be corrected shortly as, indeed, it was. For this reason the commission cannot conclude, in the narrow circumstances present here, that the employe's failure to inform the employer of his loss of his CDL was the intentional disregard of the employer's interests which is misconduct for unemployment insurance purposes. The commission therefore concludes that, in week 8 of 1999, the employe was discharged but not for misconduct connected with his employment, within the meaning of Wis. Stat. � 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for unemployment insurance beginning in week 8 of 1999, if he is otherwise qualified.

Dated and mailed August 20, 1999
makowbo.urr : 105 : 2 MC 630.09 MC 692 MC 692.02

/s/ David B. Falstad, Chairman

/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 matter. The administrative law judge indicated that the employe knew his license had been suspended; the administrative law judge thought it possible, though, that the employe did not understand the import of the suspension as it related to the employer. This is the commission's assessment, and underlies its decision to reverse the appeal tribunal decision.

cc: R & L TRANSFER

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe knew that his license had been revoked shortly after the new year. The employe successfully appealed the revocation that resulted in the Department of Transportation sending the employe Exhibit 3 which allowed the employe to apply for his CDL. The employe never contacted the employer and continued to drive for close to two months while he did not have a CDL license.

The majority bases its reversal on the belief that the employe had little or not understanding of the cancellation notice from DOT. I differ with the majority because I doubt he would have appealed the decision if he did not believe it was important. The majority was concerned that the employe spoke in broken English and was difficult to understand. The administrative law judge agreed the employe was difficult to understand but he did not believe that he had to repeat questions to the employe but he did ask the employe to repeat answers.

For these reasons, I agree with the administrative law judge and would affirm the appeal tribunal decision.

____________________________________
Pamela I. Anderson, Commissioner

Appealed to Circuit Court. Affirmed February 28, 2000. [Court decision summary]

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