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

SHAWN M VANDEN ELZEN, Employee

DL AGRICULTURAL ELECTRIC INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05403270GB


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 ineligible for benefits beginning in week 44 of 2005, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed March 3, 2006
vandesh . usd : 115 : 2  VL 1080.22

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked more than four years as an electrician for the employer, an electrical contractor specializing in dairy operations.

The employee's resignation was effective October 27, 2005. The employee offers two reasons for leaving his job with the employer: (1) he was required to work on live panels without proper protective gear, and (2) it was dangerous working with the trainee assigned to him by the employer.

During 2005, the employer was cited by OSHA because certain of its electricians were working on energized panels exceeding a certain arc flash level without proper protective gear. In June of 2005, the employer conducted a meeting of its electricians, provided training on the calculation of arc flash values, and instructed its electricians that they were to de-energize any panel exceeding the threshold arc flash value established by OSHA before working on it.

The employee testified (page 10 of synopsis) that he was present at this June meeting and that, at this meeting, the employer told its electricians they "couldn't work in energized panels."

There is at least one hour each day that the dairy systems upon which the employer's electricians work may be shut down. The employer testified that it is possible and practical to perform preliminary electrical work on such a system while it is operating and to schedule the splicing/connecting work during the shutdown period.

The employee testified that it was impractical to follow this practice, so he ended up working on live panels without proper protective gear in order to get the job done.

The commission agrees with the administrative law judge's (ALJ's) determination that the employer's testimony in this regard is credible, and with the ALJ's finding that the employee ignored the employer's directive and worked on live panels because he felt that scheduling electrical work to coincide with a dairy system shutdown was inconvenient and inefficient. This, however, was not the employee's decision to make, and his violation of the employer's directive should not provide good cause attributable to the employer for his quitting.

The employee also cites as a reason for his quitting the ineptitude of his assigned trainee, and the safety implications of this ineptitude, including the fact that, because this trainee improperly wired a switch on October 20, 2005, it exploded in the employee's face when he attempted to connect it. It should first be noted that the employee was required by the employer to wear protective eyewear, which the employer provided, but, even though he claims to have been concerned about his trainee's competence and concerned enough about his safety at work to leave his job, the employee was not wearing protective eyewear on this occasion and testified (page 2 of synopsis) that he "never wore them." It should also be noted that the employee was required to have de-energized the panel he and the trainee were working on, but failed to do so. It should finally be noted that it was the employee's responsibility to review and correct the work of his trainee, and, with the use of a simple ohm-meter, he could have determined prior to attempting to connect the switch that it was improperly wired. The commission agrees with the ALJ that the employee failed to establish that the performance failures of his trainee provided good cause attributable to the employer for his quitting.

The employee states in his petition that "there was no meeting directing us to deactivate panels." However, he admitted in his testimony (see page 10 of synopsis) that such a meeting took place in June of 2005 and that, at this meeting, the electricians were "told that we couldn't work in energized panels."

The employee also indicates in his petition that he was not allowed to call certain witnesses because the testimony they would have offered would have been cumulative, but that these witnesses would have corroborated his assertion that "we never had that meeting." However, the employee admitted in his testimony that such a meeting occurred, so the testimony these witnesses would have offered would not have changed the result here.

The employee also argues in his petition that the employer did not present any evidence at hearing, contrary to the requirement stated in the instructional materials provided by the department. However, witness testimony constitutes evidence, and the employer offered the testimony of its president/general manager.

Finally, the employee offers certain facts in his petition which are not a matter of record, and which may not, as a result, be relied upon by the commission in reaching its decision.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/03/07