COURT OF APPEALS DECISION DATED AND RELEASED February 29, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0234
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
WILLIAM J. MCKIBBIN,
Plaintiff-Respondent,
v.
STATE OF WISCONSIN
LABOR AND INDUSTRY
REVIEW COMMISSION,
Defendant,
MARTEN TRANSPORT,
LTD.,
Defendant-Appellant,
R.E. HARRINGTON, INC.,
Defendant.
APPEAL from an order of
the circuit court for Dane County:
GEORGE NORTHRUP, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. Marten Transport, Ltd., appeals from an order
reversing a Labor and Industry Review Commission (LIRC) order denying
unemployment compensation benefits to Marten's former employee, William J.
McKibbin. The issue is whether LIRC
correctly determined that Marten fired McKibbin for misconduct, rendering him
ineligible for unemployment compensation under § 108.04(5), Stats.
We conclude that the evidence fails to establish misconduct. We therefore affirm.
Marten employed McKibbin
as an over-the-road truck driver from February 1991 until January 1993. He was discharged after he fell asleep at
the wheel and rolled his truck on December 28, 1992, while driving on an Ohio
interstate highway. Marten discharged
him pursuant to a written company policy mandating termination for any accident
caused by driver neglect. The discharge
letter also cited a report that McKibbin was intoxicated at the time of the
accident.
McKibbin admitted to
drinking two beers six to seven hours before the accident, which occurred at
3:00 a.m. He did not believe that any
alcohol remained in his system. He attributed
his falling asleep to his fatigue. He
was near the end of a three-day trip from California to Ohio, and had driven
about fifteen hours the day before, only to start driving again, at 2:00 a.m.,
after four or five hours of sleep. He
also testified, however, that he was charged after the accident with driving
while intoxicated, and that a breathalyzer registered a .136 blood alcohol
content. In a subsequent prosecution on
that charge, the breathalyzer test was ruled invalid, and the charge was
reduced to reckless driving.
McKibbin appealed the
initial determination that he was fired for misconduct. The administrative law judge on his appeal
reversed after concluding from the evidence that his actions were merely
negligent and not intentional and therefore did not constitute misconduct. On Marten's appeal, LIRC, in turn, reversed
the administrative law judge's determination.
LIRC reasoned that "falling asleep behind the wheel constituted an
act of negligence of such a degree that it will constitute misconduct despite
the fact that it was a single incident."
Marten takes this appeal from the trial court's order reversing LIRC's
determination and once again establishing McKibbin's eligibility for
unemployment compensation.
Misconduct that
disqualifies an employee for unemployment compensation is:
conduct
evincing such wilful or wanton disregard of an employer's interests as is found
in deliberate violations or disregard of standards of behavior which the
employer has the right to expect of his employee, or in carelessness or
negligence of such degree or recurrence as to manifest equal culpability,
wrongful intent or evil design, or to show an intentional and substantial
disregard of the employer's interests or of the employee's duties and
obligations to his employer. On the
other hand mere inefficiency, unsatisfactory conduct, failure in good
performance as a result of inability or
incapacity, inadvertencies or ordinary negligence in isolated instances,
or good-faith errors in judgment or discretion are not to be deemed
"misconduct" within the meaning of the statute.
Boynton
Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640
(1941). The burden of proving
misconduct is the employer's. Holy
Name School v. DILHR, 109 Wis.2d 381, 387, 326 N.W.2d 121, 125 (Ct.
App. 1982). Whether the established
facts demonstrate misconduct is a question of law. Fitzgerald v. Globe-Union, Inc., 35 Wis.2d 332,
337, 151 N.W.2d 136, 139 (1967). We
review LIRC's decision on that issue, not the trial court's. Keeler v. LIRC, 154 Wis.2d
626, 632, 453 N.W.2d 902, 904 (Ct. App. 1990).
We are not bound by LIRC's conclusion on a question of law but will give
it due weight if LIRC's expertise is significant to the value judgment
involved. Nottelson v. DILHR,
94 Wis.2d 106, 116-17, 287 N.W.2d 763, 768 (1980).
Marten did not prove
that McKibbin engaged in misconduct under the Boynton
standard. McKibbin testified that this
was his first accident in thirty-one years of driving. Marten's representative effectively
confirmed that by testifying that Marten would never hire a driver with an
accident on his record. Marten did not
dispute McKibbin's testimony that his breathalyzer test was invalidated or attempt
to rebut McKibbin's testimony that he was free of the effects of any alcohol by
the time the accident occurred. Under
these circumstances, Marten has not shown negligence to such a degree as to
manifest a substantial and intentional disregard of its interests. In a fatigued state, McKibbin simply made
one bad mistake. On this question we
have not deferred to LIRC's expertise because it is not in a better position
than a court to determine when negligence crosses the line into misconduct
under the Boynton test.
Marten contends that we
should deem McKibbin's acts misconduct because McKibbin pleaded guilty to
reckless driving, and violated various state and federal regulations by driving
in hazardous weather, driving while fatigued, exceeding the maximum daily work
hours for drivers, driving a truck after consuming alcohol, and carrying a
weapon in his truck. As noted, Marten
failed to meet its burden of proof on the drinking charge. Marten was not aware of the other alleged
law violations when it fired McKibbin, and therefore could not have relied on
them. Additionally, if McKibbin
violated regulations against driving too many hours, in hazardous weather or
while fatigued, there is some evidence that the company shared responsibility. McKibbin testified that he drove in the
middle of the night after a short rest and following a long driving day in
order to meet his scheduled delivery time.
Marten did not deny responsibility for setting McKibbin's schedule.
By the Court.—Order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.