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

ROBERT A KOPHAMEL, Employee

UNIT DROP FORGE CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04607791MW


On August 7, 2004, the Department of Workforce Development issued an initial determination that held that the employee's discharge had been for misconduct for unemployment insurance purposes. The employee filed a timely request for hearing on the adverse determination, and hearing was held on September 2, 2004 in Milwaukee, Wisconsin before a department administrative law judge. On September 8, 2004, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The employee worked approximately two and a half months as a production worker for the employer, a steel forgings production concern. The employer discharged him on July 21, 2004 (week 30), for his failure to have reported an accident he had the previous day while driving his forklift, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

The incident in question occurred while the employee was driving his forklift from inside of a warehouse to the outside. The concrete levels between the two areas are slightly uneven, requiring a steel plate for smooth movement across the lip thus created. The employer has a steel plate at that point, approximately 12 feet wide, two feet deep, and half an inch thick. The employee, while going outside the building, caught the edge of the plate with one of the forks on his truck, the result of which was the jamming of the fork under the plate and the breaking off of some pieces of concrete on the lip (the largest of which was the size of a tennis ball). The employee, with the aid of two co-workers, extricated the fork from the plate and put the plate back into position. The employee was not injured in the incident and did not believe the forklift had sustained any damage, either.

The employer was made aware of the incident later that day, and determined to give the employee until the following day to report it. When the employee did not do so, the employer met with the employee in order to discharge him. At that meeting, the employee indicated that the matter had slipped his mind. He indicated that he did not know there was a rule requiring him to report such matters; he believed he only had to report incidents that caused serious damage. The employer had two rules relevant to the incident in question, one requiring employees to report "any work-related injury or accident" and another requiring employees to report all injuries and incidents of property damage.

Misconduct for unemployment insurance purposes generally requires the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. Absent an intentional failure by an employee, for misconduct to be found the employee's failure must be equal to "carelessness or negligence of such degree or recurrence as to . . . show an intentional and substantial disregard of the employer's interests." Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941). In finding misconduct in this case, the administrative law judge reasoned that the employee's failure to report the accident, "even though minor," was so grossly negligent as to meet this standard. It is this legal conclusion with which the commission disagrees. First, under the second of the employer's rules listed above, it is unclear whether the employee even had an obligation to report the matter. Second, the record establishes neither an injury to the employee nor damage to the forklift the employee was driving at the time. Third, the largest chunk of concrete displaced was relatively small. There is little question but that the better course would have been for the employee to have reported the matter, but the commission cannot conclude that his failure to have done so was so grossly negligent as to constitute misconduct for unemployment insurance purposes. Rather, at worst it was an isolated failure in poor judgment which, as it was mitigated by the factors enumerated above, does not rise to the level of negligence necessary to constitute misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 30 of 2004, the employee was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 30 of 2004, if he is otherwise qualified.

Dated and mailed November 26, 2004
kopharo . urr : 105 : 9   MC 660.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge, as there was no factual dispute regarding the employer's rules or the employee's actions. The commission has concluded, rather, that as a matter of law the employee's failure in this case did not rise to the level of gross negligence necessary to sustain a finding of misconduct.

 

cc: Labor Management Consultants - Robert C. Tibbits


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