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

JUAN E WARD, Employee

CITY OF BELOIT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01004375JV


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 employee worked for about 18 years as a sign crew person for the employer, a city government. He was discharged from his employment on June 12, 2001 (week 24).

The issue to be decided is whether the employee's actions, which led to his discharge by the employer, constitute misconduct connected with his employment.

On April 5, 2001, the employee signed a last-chance agreement relative to a complaint wherein he would refrain from making any false statements to a supervisor.

On May 24, 2001, the employee had an accident when he went to hang a sign. His truck got caught on a fire hydrant, and he did not realize this at the time. He put the vehicle in reverse to get unstuck, because he believed he was in a valley, however, a customer of a nearby restaurant pointed out to him that he was hooked on a fire hydrant. The employee got out of his truck, realized what the situation was, and became very upset. He was aware that he needed to report the accident immediately, so he called his supervisor and asked him to bring a camera so that the supervisor could take pictures. The employee did tell the supervisor he had a flat tire. The employee then noticed that a tack weld on the ladder had come loose so he took the ladder off and put it in the truck box for safety reasons. The employee neglected to mention this to the supervisor. On or about June 4, the employee filled out an accident report. He did not mention the ladder and he did not mention a dent in the vehicle.

The supervisor asked the employee if he knew about the dent in the fender, at a June 5 meeting, but the employee said he did not know anything about it. He stated he was afraid the ladder would fall off so he took the ladder off and put it in the back of a truck. The employee was not certain exactly how the accident occurred.

The employee asserted that his actions did not amount to misconduct because he did not purposely conceal information from the employer, in that he was uncertain how the accident occurred. He did not know about the dent and forgot about the ladder. The commission agrees.

Both the employee and his supervisor agreed that there was no dent at the time of the accident. There is no real evidence in the record as to how the dent occurred. As such, the commission cannot conclude that the employee concealed the dent from the employer. With regard to the ladder, the commission credits the employee's assertion that he took the ladder off for safety, threw it in the box, and forgot about it. The commission finds the employee's testimony in this regard credible for a number of reasons. For one thing, the parties agreed that the employee would not be discharged for having an accident, and therefore attempting to conceal damage from the employer would have been an action against the employee's self interest whereas reporting the accident was not. Certainly a worker who drives a city vehicle would prefer not to be in an accident. However, the potential consequences for deceiving the employer were much more severe than he faced for an accident. Further, if his intent was to avoid reporting that he had been in an accident, it would seem likely that he would not report the accident at all. In this case, he reported the accident immediately and told his supervisor to bring a camera. The supervisor had the opportunity to see any and all damage at the time of the incident. In addition, a tack weld coming loose was a very minor amount of damage, and not something he would be likely to conceal. It is also something that could slip his mind. The commission also found credible his contention that he did not really know how the accident occurred, that he was upset about it. The employee initially was not even aware that he had gotten caught on a fire hydrant, and may have had difficulty remembering exactly what happened.

Thus, the commission cannot conclude that the employee intentionally failed to divulge that he had removed the ladder from the truck and put it in the back or that he intentionally concealed a dent. The commission cannot conclude he intended to conceal facts surrounding the accident from the employer.

The commission therefore finds that in week 24 of 2001, the employee was discharged, but that his discharge was not for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 24 of 2001, if otherwise qualified.

Dated and mailed December 12, 2001
wardju . urr : 145 : 1  MC 630.07

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The outcome in this case depended upon the employee's credibility. The ALJ did not find the employee to be credible and believed he intentionally concealed the details of the accident from the employer. For the reasons stated in its decision, the commission disagrees with the ALJ's credibility assessment.


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uploaded 2001/12/17