MICHAEL L BUETTNER, Employee

ARBON EQUIPMENT CORP, Employer

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, except that it makes the following modifications:

1. The first four sentences of the fourth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted.

2. The final sentence of the fourth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is modified to read as follows:

Overall, the employee's failure to do so did evince a willful and intentional disregard of the employer's interests, and of the standards of behavior the employer had a right to expect of him.

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 51 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 June 18, 2007
buettmi . umd : 115 : 1  MC 695

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employee was discharged for three alleged safety violations.

(1) The first alleged violation occurred on September 25, 2006. The employee was performing loading dock maintenance at a customer's work site. Coons arrived at this work site to deliver supplies to the employee and noticed he was not wearing a hard hat or safety glasses.

The employee testified that he was discussing a piece of equipment with the customer outdoors on its premises in a parking or driveway area at the time Coons observed him; and that he understood that any time he was outside his vehicle in any part of a customer's facility, including a building, office, or loading dock area, he was required to wear a hard hat and safety glasses.

Through this testimony the employee essentially concedes that, because he was present at a customer's work site outside his vehicle, he was required to have been wearing a hard hat and safety glasses on September 25 but failed to do so.

The employee received a warning for this September 25 safety violation.

(2) Coons observed the employee not wearing a hard hat on December 12, 2006. The temperature was in the 40's and the employee was wearing a knit winter hat.

Coons testified that the employee was standing between his vehicle and the loading dock at the customer's work site at the time, the employee explained to Coons that his hard hat liner needed to be replaced, the employee had not previously asked Coons for a new liner, and the employee's hard hat would have fit over the knit winter hat.

Coons further testified that, when the employee saw Coons, the employee stated to him, "I suppose you're wondering why I'm not wearing a hard hat," and then explained that he did not have a hard hat liner.

The employee testified that, when Coons saw him on December 12, the employee had just gotten out from under a leveler where he was not required, according to the employer's policies (Exhibit No. 2), to wear a hard hat; he had requested a new liner the week before but had not yet received one; and he attempted to wear his hard hat over his knit hat but it kept falling off.

The employee received a warning for this incident. It was denominated a "final warning," and stated that any further safety violations would result in his discharge.

(3) On December 14, 2006, while he was delivering the warning for the December 12 incident, Coons observed the employee leaning underneath a dock leveler without the required safety strut in position.

The employee understood that the employer required that the safety strut be installed before a technician was permitted to place any part of his body beneath the leveler.

The employee's task was to go beneath the leveler to remove debris and to lubricate and inspect the mechanism. The safety strut was required to be placed under the raised dock leveler (Exhibit No. 4) to prevent it from collapsing on the employee while he was underneath the leveler.

The employee testified that he was cleaning debris from the concrete floor under the leveler without the strut in place so that he could position the strut properly on the concrete. However, the photo of the area taken by Coons at the time (Exhibit No. 6) shows that the employee had cleaned a much larger area than required to install the strut (Exhibit No. 4).

The employee also testified that he used a six-foot broom, and it had not been necessary for him to place his body under the leveler in order to clean the area he had completed on December 14 before Coons arrived.

Coons, however, testified that, when he arrived, he observed the employee's upper body under the leveler.

Given the photo of the area in Exhibit No. 6, it is more plausible that the employee would have had to lean at least part of his upper body forward past the lip of the leveler in order to have cleaned as deep an area as he did, even taking into account the fact that he used a six-foot broom to complete the task.

Coons testified that, when he asked the employee why he had not installed the safety strut, the employee told him that he "was trying to make up time and get it done quicker."

The employee does not dispute that he made this statement, but testified that he meant that he had left the strut in the van rather than carrying it with him to the loading dock in order to save time.

The employee's explanation is not credible. He had already walked from his van to the loading dock, presumably carrying only a broom. It is difficult to understand how it would save time for him to have to return to the van to retrieve the strut rather than taking it with him to the loading dock in the first place. The more plausible interpretation of the explanation offered by the employee is that he had failed to install the strut because he could complete the preventive maintenance of the leveler more quickly without doing so.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Kovach v. Farm/Fleet Janesville, Inc., UI Hearing No. 05005166WK (LIRC Feb. 24, 2006).

Here, although the second safety warning was denominated a final warning and provided notice that any further safety violations would result in termination, the employee had not received this warning, i.e., had not been placed on notice that his job was in jeopardy, before the final incident.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he engaged in it.

The third incident, standing alone, would be sufficient to support a conclusion of misconduct. The record shows that the employee failed to install a required safety strut before placing at least part of his body beneath a dock leveler. His explanation that he was clearing a spot for the strut before installing it is not credible given that the debris removal he had accomplished went well beyond what would have been required to install the strut. In addition, his testimony that no part of his body had been underneath the leveler is not credible given the extent and depth of cleaning that he had completed. Finally, as discussed above, the more plausible interpretation of his statement to Coons that he was trying to save time is that he had failed to install the strut, and did not intend to, because he could complete the preventive maintenance of the leveler more quickly without doing so.

The December 14 failure to install the safety strut was a significant safety violation which exposed the employee to serious injury or death and constituted an intentional and substantial disregard of the employer's interests within the meaning of Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).

This conclusion of misconduct is strengthened by the employee's failure to rebut the employer's testimony that, in regard to the September 25 incident, he indicated at the time that he had no excuse for his failure to wear his safety glasses and hard hat. It should be noted that the employee admitted that the only exception to the requirement that he wear safety glasses and a hard hat whenever he was outside his vehicle at a customer's work site was the employer's policy that a hard hat was not required when working underneath a leveler. Even if the employee had been working underneath a leveler on September 25, rather than discussing a piece of equipment with the customer in a driveway or parking area as he asserts, this policy exception could explain his failure to be wearing a hard hat but not his failure to be wearing his safety glasses.

cc: Attorney Charles W. Jones

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uploaded 2007/06/25