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

STEVEN D MISKULIN, Employee

KADINGER'S INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12200977EC


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, and after consultation with the ALJ, the majority of 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 7 of 2012, 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 September 20, 2012

BY THE COMMISSION:

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION


In his petition for review by the commission, the employee maintained that the two accidents he had while operating a forklift for the employer were not due to his disregard for safety or proper procedures, and were not the result of negligence, and that his questioning of the accuracy of the warning notices he was given regarding the accidents did not exhibit a poor attitude about his work.

The majority of the commission, however, agrees with the administrative law judge that the employee's knowing violation of the employer's safety rules contributed to both accidents. The employee worked as a dismantler for an auto salvage yard for about three and one-half years. He attended a forklift training and was given training materials that included advice to carry loads on the forklift no higher than 6 to 8 inches above the ground. He also understood that, when carrying transmissions by forklift, the employer advised putting them on pallets and not directly on the tines of the forklift.

Nevertheless, on February 7, 2012 the employee put a transmission that he knew was top-heavy directly on the forklift tines, and as he rounded a corner the transmission fell off and was damaged. Two days later, he was carrying a car on the forklift in the yard. The ground was rough and rutted from recent rains. He was carrying the car substantially higher than the recommended 6 to 8 inches above the ground. He hit a rut, causing the car to slide off the forklift. The car rolled over and rested on its roof. The rollover damaged the car. Although nobody was injured in these accidents, the employer's supervisor believed that reckless operation of the forklift while carrying heavy loads that could fall off in an area where others were working presented a potentially dangerous situation. When the supervisor handed the employee two warnings about the accidents several days later he made excuses about the accidents and did not acknowledge his responsibility for contributing to them.

In reaching its conclusion of misconduct, the majority relies upon the egregiousness of the employee's conduct. While the administrative law judge noted that the employee had received prior warnings about smoking in the employee's buildings, which was a fire hazard, he had not received warnings specifically about his conduct on the forklift until February 13, 2012, several days after the two accidents. It cannot be said, then, that the employee received warnings prior to the forklift accidents that put him on notice that his job would be at risk for the type of conduct for which he was discharged. Unless an employee's conduct is sufficiently egregious, before there can be a finding of misconduct the employee has to be aware, or have reason to be aware, that his job will be in jeopardy if he engages in the subject conduct. Hintz v. Nate's Lawn Maintenance, Inc., UI Dec. Hearing No. 06600287WB (LIRC April 20, 2006).

This is a case in which the employee's conduct was sufficiently egregious to relieve the employer of having to show that it made him aware, before discharge, that his conduct would jeopardize his employment. Conduct is found to be sufficiently egregious when it presents a significant potential danger--for instance, a customer contact representative's mishandling of an emergency call (Yang v. Xcel Energy Services, Inc., UI Dec. Hearing No. 08201374EC (LIRC Nov. 26, 2008)), an employee's failure to install a safety strut before placing part of his body under a dock leveler (Buettner v. Arbon Equipment Corp., UI Dec. Hearing No. 07600129MW (LIRC June 18, 2007)), or an employee's having left his forklift running without putting on the emergency brake, clocking out and leaving in the middle of his shift (Raleigh v. UFE, Inc., UI Dec. Hearing No. 99200063HU (LIRC June 7, 1999)). In this case, considering the size and weight of the loads that the employee was transporting and the presence of other workers, the employee's driving his forklift in a careless manner, knowing that it was against existing safety rules, causing a transmission to fall off and a car to fall off and roll over, presented a significant potential danger on the order of these cases. The employee's conduct contributing to these accidents manifested a willful and substantial disregard of the employer's interests and of the standards of conduct that the employer had a right to expect, which is misconduct for purposes of unemployment insurance. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

ROBERT GLASER, Chairperson (dissenting):

I respectfully dissent from the majority opinion in this matter. While I do not condone the employee's actions, and they were a breach of his duties and responsibilities to his employer, I do not find that they were sufficiently egregious to support a finding of misconduct in the absence of a specific prior warning that the employee's job was in jeopardy for the conduct. As to the accident with the transmission, the employee credibly testified that employees commonly carried them on forklifts without pallets, and in any case it was undisputed that he looked for one at the time, but could not find one. With respect the car accident, the employee credibly testified that it was necessary to carry loads in the salvage yard higher than 6 to 8 inches in order to keep the loads above the very uneven ground. In addition, the evidence that the accidents presented a potential danger was speculative. While the employee's conduct was negligent, I do not believe that it was egregious.


/s/Robert Glaser, Chairperson

 
miskust . usd : 107 : 2

cc: Kadinger's Inc., Cadott, WI

 


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