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

KIM W ZIMMERMAN, Employee

CITY OF SHEBOYGAN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401649SH


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 23 of 2006, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed October 17, 2006
zimmeki . usd : 115 : 1   MC 662

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


The employee worked more than 22 years as a bus driver for the employer, a municipality.

The employer's work rules, and the applicable collective bargaining agreement, delineate the process for reviewing and addressing preventable accidents. This process requires the review of each incident by the employer's accident committee to determine whether it was preventable, and the imposition of progressive discipline for each preventable accident occurring within a rolling twelve-month period, i.e., warning, written warning, suspension/retraining, termination.

The employee was involved in five incidents in the seven-month period between October 24, 2005, and May 22, 2006. The accident committee concluded that the following four were preventable:

(1) October 24, 2005-the employee stopped to pick up a passenger and, while this passenger was depositing his fare and partially blocking the employee's view of the bus door/stairs, closed the door on an elderly passenger, resulting in minor injury to her

(2) November 28, 2005-the employee, while driving his assigned bus through a parking lot, sideswiped a parked car while making a left turn, causing extensive damage to both vehicles; the employee was cited for inattentive driving

(3) March 23, 2006-the bus the employee was driving and a passenger vehicle collided in the middle of an intersection set up as a four-way stop; both vehicles sustained significant damage; the employee's bus entered the intersection slightly before the passenger vehicle; it is not clear why neither driver noticed the other; neither driver received a citation; the employee served a 3-day suspension and underwent required retraining as a result of this accident, and was warned that, consistent with the work rules/collective bargaining agreement, he would be discharged if he was involved in another preventable accident before October 24, 2006

(4) May 22, 2006-while at a transfer station, the bus the employee was driving struck another bus, and dislodged its mirror; the damage to both vehicles was so minor that no repairs were needed

Although the employee was invited to attend disciplinary/safety meetings in regard to each of these incidents, he failed to do so.

The standard is whether the employee's actions evince a recurrent pattern of negligent acts so serious as to constitute gross negligence, i.e., negligence demonstrating an intentional and substantial disregard of the employee's duties and obligations to the employer.

In his testimony, the employee admits that, in the months in which the subject incidents occurred, he "had some personal problems and I guess it clouded my vision mentally."

Both the October 24 and the November 28 incidents, for which the employee was clearly at fault, raised significant issues concerning the safety of bus passengers or the drivers/occupants of other vehicles. Although the employee may not have precipitated the March 23 incident, he could not explain why he did not observe the other vehicle enter the intersection and attempt to avoid colliding with it. Finally, even though the May 22 incident was comparatively minor, the employee was again clearly at fault for striking another vehicle.

The actions at issue here, considering both the extent of employee fault, and the nature and extent of the actual and potential consequences for persons and equipment, involve a degree of negligence satisfying the gross negligence standard, and constitute misconduct. See, Marcks v. Ecklund Carriers, Inc., UI Hearing No. 02401274AP (LIRC Sept. 11, 2002).



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