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

CHARLES A PAINE JR, Employee

MARTEN TRANSPORT LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09200277EC


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for over a year as a trucker for a trucking firm. His last day of work was December 21, 2007 (week 51), when he was discharged for too many accidents which were deemed preventable.

Under the employer's rules, an employee is discharged when he has accumulated 12 points in preventable accidents as determined by the employer. The employer determined that after the third accident that the employee had exceeded its point total. The employee subsequently had a fourth accident before he was notified of his discharge.

In the first accident on May 3, 2007, the employee hit a highway sign. He explained that he went past the turnoff, slowed down and made a turn. The shoulder gave way and he clipped the sign post, damaging the left fender.

In the second accident, on July 18, 2007, the employee set the truck's brakes when he went to get fuel. He had had problems with the brakes before. He left the truck to go into the building and the truck rolled back, damaging his trailer and another trailer.

On December 10, 2007, the driver's side bumper was damaged. The employee was not aware of it at the time and did not report it. He speculated that it may have been hit by a snow plow.

On December 21, 2007, the employee hit a traffic light. He thought he had clearance but he did not. A police officer stopped him to tell him he had hit the light. The employer directed the employee to report to Mondovi where he was discharged.

The issue before the commission is whether the employee's four accidents rise to the level of misconduct

The employer deemed each of these accidents to be preventable. However, based on the employee's undisputed accounts, the commission does not find the employee's conduct blameworthy in either the second or third accident. For the remaining accidents, the commission must consider where to draw the line between ordinary negligence and misconduct in the context of "preventable" trucking accidents.

In a previous case before the commission, it rejected an employer's argument that an accident was "very preventable" by stating, " [w]hile carelessness and negligence were clearly involved in both the incident in which the employee's truck struck a utility wire and the incident in which he broke the mirror on another truck, and while more attention on the part of the employee could well have avoided both accidents, this does not establish that the negligence rose to that degree which warrants a finding of misconduct....In retrospect, all errors and accidents attributable to negligence can be recognized as "preventable" and can be attributed to disregard of safety or other concerns on the part of the negligent actor. If this, per se, rendered such acts of negligence "misconduct," the indication of the Supreme Court in Boynton Cab that ordinary negligence in isolated instances does not constitute misconduct, would be contradicted. Where negligence is concerned, the question of misconduct is a question of degree. Here, the Commission finds that the two accidents established by the record in which the employee was at fault as a result of his negligence did not rise to the level of misconduct." Derezinski v. Wisconsin Express Lines, U I Hearing No. 89-403256 GB (LIRC Mar. 23, 1990).
In Vruwink v. Distribution Services, Inc., No. 91-400355AP (LIRC, 11-5-91), the commission held that an employee who had four accidents in a 13-month period had not committed misconduct. Two of the accidents could not be attributed to the employee. The employee admitted full responsibility for the July and December 1990 accidents. The December accident was due to the employee's hitting another vehicle while he changed lanes, that vehicle being in the employee's "blind spot." The commission concluded that the employee's conduct did not rise to the level of misconduct.


In contrast, the commission found that where an employee rear-ends two vehicles in the space of two and a half months, a finding of gross negligence tantamount to misconduct is not inappropriate. In Wierl v. Browning-Ferris Industries of Wisconsin, Inc., No. 91-604327 MW (LIRC, 8-13-91), the commission reasoned that the employee was at fault for both accidents, that they occurred in a short span of time, that they were similar, and that the employee was cited on both occasions.

In the present case, the record does not indicate that the employee was cited for any of the accidents. Two of them involved hitting stationary signs on the road, but those two accidents were more than six months apart. In the other two, the employee was arguably blameless. The commission finds that the employee's discharge was not for misconduct.

The commission therefore finds that in week 51 of 2008, the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 51 of 2008, if otherwise qualified.

Dated and mailed May 22, 2009
painech . urr : 178 : 5 MC 662

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. The commission reaches a different legal conclusion based on the employee's undisputed account of what occurred in each accident.

cc: Marten Transport (Mondovi, Wisconsin)


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uploaded 2009/05/22