BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

ROBERT R. VOELTNER, Employee

Involving the account of

CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91-400173 AP


The Department of Industry, Labor and Human Relations issued an Initial Determination that held that in week 49 of 1990, the employe's work was suspended by the employer but not for misconduct or other good cause connected with his work. As a result, benefits were allowed. The employer appealed and a hearing was held by an Administrative Law Judge who amended and reversed the Initial Determination and held that in weeks 50 of 1990 through 2 of 1991 the employe was suspended for misconduct or other good cause and was therefore ineligible for benefits. An overpayment of $1,125 was assessed. The employe timely petitioned for Commission review. On January 27, 1992, the Commission remanded the matter for further testimony.

Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe has worked for about 35 years as a transport operator for the employer, a transportation business. He remains employed with the employer.

The employe drove a tandem trailer vehicle for the employer. In September of 1990, while reaching down to grab a donut, his vehicle went onto the shoulder of the road, and the back trailer flipped over. In order to grab the donut, the employe's eyes had left the road. He had been traveling about 55 miles per hour when the accident occurred. On September 19, 1990 the employer terminated him for this accident. On October 2, 1990, this termination was reduced to a suspension for reckless driving and he was reinstated.

Early in the morning on December 3, 1990, as the employe was attempting to get to a truck stop due to a blizzard, his vehicle lost air pressure to the breaks. This caused the back trailer to swing around and snap away from the front trailer.

On December 13, 1990, the employe received a letter informing him he was discharged. This was later reduced to a suspension. He returned to work on January 15, 1991.

The issue to be decided is whether the suspension of the employe's employment during weeks 50 of 1990 through 2 of 1991 was a disciplinary action for misconduct or other good cause connected with the employment.

The employer argued at the hearing that the employe was suspended as the result of three incidents: entering the yard at an excessive speed in the summer of 1990 (the employe received a verbal warning), the accident in September, 1990, and the accident in December, 1990. The Administrative Law Judge found that the December 3, 1990 accident did not constitute misconduct or other good cause, but the accident in September was caused by the employe's negligence and constituted good cause for the suspension.

In his petition, the employe asserted he had already been suspended for the September accident. At the remand hearing, it was established that the employe had received a disciplinary suspension solely because of the September, 1990 accident. Since the employe has already been disciplined for this behavior, it may not form the basis of a subsequent disciplinary action.

Since the employe has already been disciplined for the September, 1990 accident, the issue then is whether the other two incidents cited by the employer will support a finding of suspension for misconduct or other good cause. "Other good cause" is a lower standard than that for misconduct and may encompass single isolated incidents of poor judgment or negligence on the part of an employe. However, some blameworthy conduct must be shown on the part of the employe to find other good cause. The Commission concludes that there is none. On the occasion when the employe entered the employer's premises at a high rate of speed, he was verbally warned not to repeat it. No evidence was offered at the hearing that he repeated this conduct. Therefore, the Commission cannot conclude that this standing alone constitutes misconduct or other good cause.

The employer also maintained that the employe was negligent in driving at an excessive rate of speed which caused the December accident. The Administrative Law Judge found no negligence and the Commission must agree. The employe testified that the weather conditions at the time of the accident were very hazardous. It was icy and there were high winds. Further, he testified he was driving 15 to 20 miles per hour. Although the employer's witness asserted this was not credible given the seriousness of the accident, the Commission chooses to believe the employe. The employer was not present at the time of the accident. The state patrol which responded to the accident did not cite the employe for driving too fast for conditions. Based on the evidence given at the hearing, the Commission concludes that the December 3, 1990 accident was not caused by any fault or negligence of the employe. Therefore, the Commission must conclude that there was no misconduct or other good cause on the part of the employe to justify a disciplinary suspension which would deny the employe benefits.

The Commission therefore finds that in weeks 50 of 1990 through 2 of 1991, the employe's work was suspended as a disciplinary action but not for misconduct or other good cause connected with his work, within the meaning of section 108.04 (6) of the statutes.

DECISION

The decision of the Appeal Tribunal is reversed. Accordingly, the employe is eligible for benefits if he is otherwise qualified. The employe does not have to repay any overpayment.

Dated and mailed May 5, 1992
178 : CD8720  MC 676  MC 688.1

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


NOTE: The Commission did not confer with the Administrative Law Judge before reversing her decision. The Commission bases its decision on evidence which was unavailable to the Administrative Law Judge at the time of the original decision and not on any differing assessment of witness credibility.

cc: 
R. E. Harrington Inc.
Consolidated Freightways Corp.


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