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


MITCHELL C ZABLOTOWICZ, Employe

COUNTY OF IOWA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003974DV


On September 23, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 38 of 1998 the employe was suspended as a disciplinary action for good cause. As a result, benefits were denied. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On November 6, 1998, the appeal tribunal issued a decision which affirmed the initial determination. The employe filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe has worked for the employer for about nine years, most recently as a tandem truck driver.

On August 31, 1998, the employe was assigned the task of mowing the grass and weeds around culverts near roadways. The employe was operating the lead tractor, and was followed by a secondary tractor. He performed the "first cut," then began helping with the "second cut" by mowing around signs in drainage areas so that the secondary tractor would not have to slow down when it caught up to him. On the day in question, the employe was mowing in an area that was unfamiliar to him and in which the visibility was poor due to very high weeds. The area turned out to be unstable, and the employe unexpectedly slid and fell into a sink hole, causing his tractor to tip over.

The employe was suspended for five days beginning on September 17, 1998 (week 38) as a result of that incident. The issue presented in this case is whether the employe was suspended for good cause connected with his work.

The commission has consistently held that "good cause" in a disciplinary suspension does not require the level of culpability necessary for a finding of misconduct under Wis. Stat. § 108.04(5), and that it includes single isolated acts of poor judgment of the type that might not necessarily amount to misconduct. Nonetheless, some evidence of culpability must be presented to warrant a conclusion that a disciplinary suspension is for good cause. Such evidence is lacking in this case.

The employer's contention was that the incident was the result of the employe's own negligence because he was making a second cut, which he should have left for the secondary tractor to do using a side mount mower and that, in doing so, the employe disregarded standard operating procedures. However, the employer presented no competent evidence to suggest that the employe failed to follow standard operating procedures or that the accident was the result of any negligence on his part. The employer's only witness was the personnel director, who did not claim to have any firsthand knowledge of standard mowing procedures, and who was unaware of any written policy prohibiting the employe from making a second cut. The employe denied any failure to follow proper procedures and testified that he did things the way they were always done. He further suggested that his supervisor approved his actions in working on a second cut.

The appeal tribunal nonetheless concluded that the accident was due to the employe's own negligence. This conclusion was not based upon the employe's actions in making a second cut--the only specific allegation raised by the employer at the hearing--but upon a finding that the employe admitted he had been negligent and that he should have taken the precaution of checking the area prior to entering it with his tractor. However, the employe consistently denied having been careless and disagreed that there were any actions he could or should have taken to prevent the accident. Although the employe acknowledged that he had not checked for washouts prior to entering the site, it was not customary practice to do so. While, as the appeal tribunal noted, another mowing crew had had a problem concerning a washed out area previous to this incident, the employe explained that this was the result of a defective culvert which had since been repaired, and that it gave him no reason to believe he needed to check the area where he was working.

Under all the circumstances, the commission is unable to conclude that the incident for which the employe was suspended was the result of any negligence or culpable conduct on his part.

The commission, therefore, finds that in week 38 of 1998 the employe's work was suspended, but not as a disciplinary action for good cause connected with his work, within the meaning of Wis. Stat. § 108.04(6).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits in week 38 of 1998, provided he is otherwise qualified.

Dated and mailed: February 25, 1999
zablomi.urr : 164 : 6  MC 676

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not consult with the administrative law judge regarding credibility. The commission's reversal is not based upon a different assessment of witness credibility. Rather, as noted in the body of the decision, the commission reaches a different result when applying the law to essentially the same set of facts as that found by the appeal tribunal. In addition to those factors cited in the decision, the commission also takes exception to the appeal tribunal's consideration of the fact that the employe had raised his voice at his supervisor on a prior occasion. That prior offense, for which the employe was already disciplined, had no bearing on the disciplinary suspension at issue.

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employer presented sufficient evidence to find that the employe was suspended for good cause connected with his employment.

In looking at whether the employe was negligent, it is reasonable to ask was this a preventable accident. The employe testified "...Mr. Klosterman said the accident was preventable. Using hindsight, it was preventable, possibly by not going there, by having it properly marked, or by having the section man mow his section, which he was more familiar with." While the employe did not believe he should be punished, part of the reason he was suspended was because the employer used progressive discipline and the employe had previous warnings.

The employe described what he did that day as follows: "I went ahead about 3 feet to an area where it was safe to back up towards the culvert. When I did that, the tractor slid and fell into a sink hole. I did not notice the hole, which may have been caused by a wash-out, because the weeds were high." He also testified, "The mowers want to stay in visual contact with each other, in case something happens. If the lead mower goes too far ahead, and has time, he sometimes helps out and makes a second cut. I was about 300-500 yards ahead of the second mower at the time of the incident. He did not see what happened because I had just crossed a little knoll, and he was behind it. My tractor tipped over on its side. After sliding and hitting the sink hole and tipping over, I ended up about 15 feet from the road. I tried to get out the door, but could not, so I opened a rear window, got out, and walked up the hill. A person stopped and asked it I was okay. I said I was, and they notified the other mower."

The employe said, "The weeds were about 5' tall around the culvert, and I could not see the drop-off. I was about 15' from the culvert. There should not be any drop-offs 15" from a culvert. This drop-off was something abnormal, a washout or something similar." "Washouts can be created by rainstorms.... Two days before this incident, the other group ran into a washout that was big enough to bury a tractor. That was later taken care of."

The employer testified that "The damages are estimated at $2500, but the costs could increase when the repairs are actually done." The employer also testified "I am not aware of any cases in which a person who was negligent and caused an accident was not disciplined." He also indicated that the discipline related to where the employe was in the progressive disciplinary system. The employe received a suspension because he had previous discipline.

For these reasons, I would affirm the administrative law judge.

Pamela I. Anderson, Commissioner

cc: MICHAEL WILSON
AFSCME COUNCIL 40

MARK HAZELBAKER
BELL GIERHART & MOORE SC


Appealed to Circuit Court.  Appeal dismissed June 21, 1999 based on untimeliness and failure to serve a summons.

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