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


MARTIN J McGLONE, Employe

H O WOLDING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99402209AP


On October 1, 1999, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct connected with his employment. The employe filed a timely request for hearing on the adverse determination, and hearing was held on November 9, 1999 in Appleton, Wisconsin before a department administrative law judge. On November 24, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the record and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately four years as an over-the-road driver for the employer, a trucking concern. The employer discharged him on September 20, 1999 (week 39), for four previous failures and for a fifth failure, an accident the employe was in on September 13, 1999. The employe's record does not approach the general standard for driving misconduct; the commission therefore reverses the appeal tribunal decision.

The employe first was disciplined on February 4, for having falsified his driving logs. The employe conceded he had done so, that he had made some mistakes in the calculation of his hours. Regardless, that was the only time he ever did so, according to the record, and the matter thereupon was ended. The employe also was spoken to, for having an empty beer bottle in his truck on March 4. The employe's unrebutted testimony was that he had found it in the yard and had simply thrown it into the side garbage box to throw away, but then had forgotten to dump it out. Again, the record indicates that this was an isolated instance of that nature.

The employe was ticketed for improper lane change (and causing an accident) on March 24, near Charlotte, North Carolina. The ticket subsequently was dismissed, however. The employe's unrebutted evidence was that a school bus had come onto the highway improperly, crossing over at least two lanes of traffic and causing a gasoline tanker to jackknife. In order to miss the bus, the employe changed lanes to the left, pushing a pick-up truck out of that lane and causing an accident between himself and the pick-up. The employe pled not guilty to the ticket, and subsequently received a letter from the North Carolina Magistrate handling the case stating in effect that he had discharged the case because it was without merit. There is no evidence in the record to indicate that the employe was at fault in this accident.

The incident precipitating the discharge was the employe's rear-ending a pick-up truck on the highway in upstate New York. The evidence again indicates, though, that he was not at fault for the accident. The employe was driving the speed limit on a state highway when a pick-up truck came out of a gravel driveway onto the highway almost directly in front of him. The other driver had spun his wheels getting onto the highway, at which point the employe saw the dust kick up and began braking. The employe's total stopping distance was approximately 230 feet, well below the approximately 300 feet stopping distance usual for a loaded truck. The employe had seen the pick-up truck from approximately 200 feet, through the bushes lining the gravel driveway, at which point he disengaged his cruise control and placed his foot on the brake pedal (just in case). Despite the reasonable stopping distance, the employe received a citation from a New York State police officer who said that one is driving too fast if he cannot stop any vehicle in fifty feet.

Misconduct for unemployment insurance purposes is the substantial and intentional disregard by an employe of standards an employer reasonably may expect of its employes. The employe's driving record in this case does not meet this standard. First, although it is not a hard and fast rule, yet there is an industry standard in the trucking industry, for the number of accidents which will lead to a discharge for misconduct. That standard is three preventable accidents in a year's time. See Kostrova v. Tom Joy & Son, Inc., UI Dec. Hearing No. 99402211AP (LIRC Jan. 3, 2000)(three preventable accidents in a year's time is an industry standard in the trucking industry, for the number of accidents which will lead to a discharge for misconduct).   The commission also has held that an employe who had four accidents in a 13-month period had not committed misconduct, in Vruwink v. Distribution Services, Inc., UI Dec. Hearing No. 91-400355 AP (LIRC Nov. 5, 1991). 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.

The evidentiary record in the present case is insufficient to establish employe fault for either of the accidents for which the employe discharged him. The employe's two non-driving failures the employer included as grounds for the discharge, were isolated instances of poor judgment or simple mistakes by the employe, and which were not repeated. The commission therefore finds that, in week 39 of 1999, the employe was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

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

Dated and mailed May 3, 2000
mcgloma.urr : 105 : 3  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 case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission disagrees with the administrative law judge's assessment that the employe's involvement in the accidents in question, alone, established that the employe was driving too fast to control his vehicle and too fast to maintain a safe lookout.

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. There were anonymous complaints about the employe's driving that while not proven at the hearing to be true were significant enough to cause the employer to send the employe to remedial training and a new road test.

At the hearing the employe testified that the North Carolina ticket was dismissed because it was without merit but we have no evidence that that was true. There is no evidence that the employe attended a hearing and the employe did not submit the letter indicating that his case was dismissed. I do not find creditable the employe's testimony that the New York State police officer would have told him that one is driving too fast if they can not stop within fifty feet. The employer asked the employe for the tickets but the employe never gave them the tickets or copies of the tickets.

This employe had been warned and retrained and he still had preventable accidents. For these reasons, I would affirm the administrative law judge's decision.

__________________________________________
Pamela I. Anderson, Commissioner


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