Wis.LIRC UC Decision: Stanford - December 20, 2000 - MC 662 - Accident; MC 663 - Damage to equipment or materials -- no misconduct in case of driver with 2 accidents in 2 months; mitigating circumstances in accident precipitating discharge; consideration also given to the fact that employees who drive for a living are going to get into accidents on occasion

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

WARNER F STANFORD, Employee

De BOER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005204WR

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed December 20, 2000
stanfwa.usd : 105 : 1 MC 662 - Accident; MC 663

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Although it is not a hard and fast rule, a general industry standard for discharge for accidents is three "preventables" in a year's time. That is, if a driver is responsible for three accidents in a year's time, the employer is considered to have cause to discharge the driver for misconduct. (1 ) The employer's rules are more strict. Those rules allow for termination without prior warning for a major preventable accident.

Of more force are the actual statute, Wis. Stat. � 108.04(5), and commission decisions applying that statute to actual claims for unemployment insurance filed. In Vruwink v. Distribution Services, Inc., U.I. Dec. No. 91- 400355AP (LIRC 11/5/91), the commission held that an employe who had four accidents in a 13-month period had not committed misconduct. Two of the accidents could not be attributed to the employe. The employe admitted full responsibility for July and December 1990 accidents, however. The December accident was due to the employe's hitting another vehicle while he changed lanes, that vehicle being in the employe's "blind spot." The employe in Vruwink arguably had a worse driving record than the employe in the present case, but that driving record did not constitute misconduct for unemployment insurance purposes.

In contrast, where an employe rear-ends two vehicles in the space of two and a half months, a finding of gross negligence tantamount to misconduct is not inappropriate, and the commission so held in Wierl v. Browning-Ferris Industries of Wisconsin, Inc., U.I. Dec. No. 91-604327 MW (LIRC 8/13/91). In that case, the commission reasoned that the employe was at fault for both accidents, that they occurred in a short span of time, that they were similar, and that the employe was cited on both occasions. In contrast, in the present case the only similarity is that the two accidents occurred in approximately the same span of time.

In addition to the above, there were mitigating circumstances regarding the accident which precipitated the discharge. The employee's unrebutted testimony was that it was a high volume traffic pattern requiring considerable attention from the employee, coupled with the unusual and significant distraction of pedestrians on both sides of the roadway. In addition, there is no evidence that there was any advance warning of a low underpass, such as the customary sign with yellow flashing light. The commission has also recognized "that driving constantly subjects an employee to hazards and traffic difficulties, and that a driver who escapes his or her work completely `unscathed' is exceptional rather than representative of the performance an employer reasonably may expect of employees." Trumble v. W O W Distributing Co., Inc., U. I. Dec. No. 96602844WK (LIRC 8/23/96).

For the above reasons, and those stated in the appeal tribunal decision, the commission agrees with the administrative law judge's conclusion of no misconduct.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Both of the accidents were preventable accidents. The employee hit another trailer as he pulled away from the loading dock. The trailer was not moving. He was not cited for the accident because it did not occur on the highway. The second incident was when the employee struck a bridge because the clearance was too low for his trailer. The second accident had damage of $11,000. I believe the two accidents within such a short period of time (July 10, 2000 and August 18, 2000) reached the level of gross negligence.

The majority indicates that it is a mitigating factor that there were no flashing yellow lights but overpasses on the beltline do not have flashing yellow lights. I believe professional drivers should have an idea by just seeing the bridge that there may be difficulty. I do not expect perfection but I believe a foot too low should be noticeable. For these reasons, I would reverse and find misconduct connected with his employment.

______________________________________
Pamela I. Anderson, Commissioner

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Footnotes:

(1)( Back ) The dissent would find that the employee's two preventable accidents reached the level of gross negligence. This ignores the nature of the first accident, however, which essentially was merely a scraping of another trailer as the employee was leaving a loading dock (and which caused a relatively small amount of monetary damage). It also ignores the fact that someone who drives for a living is going to get into accidents on occasion.