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


KELLY WALKER, Employe

J B HUNT TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004211JV


On September 26, 1998, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing, and hearing was held on November 12, 1998 in Janesville, Wisconsin before a department administrative law judge. On November 12, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for review of the adverse appeal tribunal 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 employe worked approximately five months as a truck driver for the employer, a transportation concern. The employer discharged him on September 14, 1998 (week 38), following an accident the employe had on September 9, 1998. The commission does not believe the employe's driving record rises to the level of misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employe's failures consisted of two accidents. The first occurred on June 26, 1998. The employe was coming down an off- ramp in Palatine, Illinois during a heavy rain storm. A driver cut the employe off, noticed that the traffic light at the bottom of the ramp was not working, and slammed on his brakes. In order to avoid hitting the driver, the employe in turn had to slam on his brakes and turn the tractor, causing his rig to jackknife. (1) Following this incident, the employer placed the employe on probation, indicating that he would be discharged if he had another incident/accident in the next six months.

The employe had that accident on September 9, 1998, when he overturned his rig on a highway curve. He "lost his focus" for a few seconds, ending up taking the turn too fast. The load he was carrying shifted in the trailer, causing him to roll his rig. The employe received a speeding citation for that accident.

Although it is not a hard and fast rule, a general industry standard for discharge for accidents is three "preventables" in a year's time. That is, if a driver is responsible for three accidents in a year's time, the employer is considered to have cause to discharge the driver for misconduct. The employer's rules are more strict. Those rules allow for termination without prior warning for a major preventable accident or more than one minor preventable accident. Private contractual agreements, however, cannot supersede the statutory definition of misconduct in the context of the Unemployment Compensation Law.

Of more force are the actual statute, Wis. Stat. § 108.04(5), and commission decisions applying that statute to actual claims for unemployment insurance filed. In Vruwink v. Distribution Services, Inc., No. 91-400355AP (LIRC, 11-5-91), the commission held that an employe who had four accidents in a 13-month period had not committed misconduct. Two of the accidents could not be attributed to the employe. The employe admitted full responsibility for July and December 1990 accidents, however. The December accident was due to the employe's hitting another vehicle while he changed lanes, that vehicle being in the employe's "blind spot." The employe in Vruwink arguably had a worse driving record than the employe in the present case, but that driving record did not constitute misconduct for unemployment insurance purposes.

In contrast, where an employe rear-ends two vehicles in the space of two and a half months, a finding of gross negligence tantamount to misconduct is not inappropriate, and the commission so held in Wierl v. Browning-Ferris Industries of Wisconsin, Inc., No. 91-604327 MW (LIRC, 8-13-91). In that case, the commission reasoned that the employe was at fault for both accidents, that they occurred in a short span of time, that they were similar, and that the employe was cited on both occasions. In contrast, in the present case the only similarity is that the two accidents occurred in approximately the same span of time. Here, the employe was not cited for the first accident, and it was of a different nature from the second accident.

The commission therefore finds that, in week 38 of 1998, the employe was discharged but not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if he is otherwise qualified.

Dated and mailed: January 22, 1999
walkeke.urr : 105 : 1 MC 662  MC 692

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's disagreement with the appeal tribunal decision is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission concludes that the employe's accidents were not of such negligence as to constitute the gross negligence which is misconduct for unemployment insurance purposes.

PAMELA I. ANDERSON COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that both accidents were preventable. In the first accident, the employe should have anticipated the stop light at the bottom of the ramp and slowed his speed. The accident occurred during a heavy rain storm so he should already have adjusted his speed downward because of the wet weather. If the employe had not jackknifed his truck, he would have rear ended the vehicle ahead of him. I see similarities between the accidents as both were related to going too fast for conditions. Since I see this as a repeat of his conduct, I believe his discharge was for misconduct.

I would agree with the administrative law judge and affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner

 

cc: J B HUNT TRANSPORT INC .


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Footnotes:

(1)( Back ) The dissent argues that, in the employe's first accident he was going too fast for conditions. There is no evidence to indicate that this was the case, however. Also, the employe received no citation for this accident. Most importantly, there is no evidence to support the dissent's claim that the employe had not anticipated the stop light at the bottom of the ramp. What the employe did not, and reasonably could not, anticipate was the driver who cut the employe off and then slammed on his brakes.