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

JACOB E HOCHSTETLER, Employee

BERNICKS PEPSICOLA OF DRESSER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01201619EC


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 as of week 40 of 2001, if he is otherwise qualified.

Dated and mailed February 13, 2002
hochsja : 135 : 8  MC 662  MC 692

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The employer raises no new issues or concerns in its petition for commission review. In analyzing cases involving "preventable accidents" the commission has consistently held that the question of misconduct in these types of cases is a question of degree. See, Marek Derezinski v. Wisconsin Express Lines, UI Dec. No. 89-403256GB, (LIRC March 23, 1990).  Specifically, in Derezinski, the commission found that two preventable accidents in which the employee was at fault as a result of his negligence did not rise to the level of misconduct.

Applying the same standard to the set of facts before the commission in this case, the commission also agrees that while the employee was at fault to some degree in each of the accidents due to his negligence, his conduct failed to rise to the level of misconduct sufficient to support a finding within the meaning of Wis. Stat. § 108.04(5). Here, the commission concludes that the employee's three "preventable" accidents do not establish gross negligence or conduct beyond that of ordinary negligence, necessary to support a finding of misconduct.

In regard to the employee's failure to prepare an accident report, it is undisputed that the employee reported the accident to his supervisor and was told to continue with his next route. The employee reasonably believed that he did not have to prepare an accident report given his supervisor's instructions and in view of the fact he was told by the other driver that there was no damage. The employee's belief or assumption in this regard, absent a specific policy by the employer, was reasonable. In regard to the alleged obscene gesture, the employer failed to produce an eyewitness to the incident and the document of the signed statement by the co-worker who allegedly saw the obscene gesture constituted hearsay. Based on the above discussion, the appeal tribunal decision is affirmed.

cc: Bernick's Pepsicola Company


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uploaded 2002/02/18