APPEAL from the Circuit Court of Madison County; the Hon. JOHN
W. DAY, Judge, presiding.
MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:
Plaintiff, employer, appeals from judgment entered by the Madison County Circuit Court affirming defendant Board of Review's award of unemployment benefits to defendant Cauble. The Board determined that Cauble was not disqualified from benefits because the behavior for which he was discharged was not "intentional."
The facts are essentially undisputed. Cauble had been employed at plaintiff's Granite City facility since March 1973. Until shortly before the July 15, 1976, incident, he worked as a laborer. Three weeks prior to the incident he assumed the position of a millwright helper performing maintenance work in the "basic oxygen furnace operations" (B.O.F.). On July 15, 1976, Cauble was performing maintenance work near the B.O.F. with another millwright. In the immediate area of Cauble's maintenance duties a large and extremely heavy "B.O.F. vessel" used in the transporting of molten metals was suspended directly above an area where a crew of maintenance employees was working. In accordance with well-known and published company safety rules, the maintenance foreman had placed a "safety tag" on the power switch to the "tilt control" of the B.O.F. vessel. The tag contained a warning that the penalty for unauthorized removal was discharge. This "warning" was also contained and set out in a booklet distributed to all employees by plaintiff entitled "General Safety Rules For All Employees." Cauble, employed by plaintiff since March 1973, was well aware of this rule.
Shortly after arrival in his work area near the B.O.F. vessel, and in disregard of the safety tag warning and safety rules, defendant Cauble removed the tag and "threw" the power switch of the B.O.F. vessel's tilt control causing the massive vessel to "slip." Cauble later claimed that he acted upon the request of the millwright with whom he was working (a nonsupervisory employee) and did not know that the machine had been "tagged out." He was discharged on July 16, 1976, for violating established safety rules and endangering the lives of employees in the area below the B.O.F. vessel.
Cauble filed a grievance against plaintiff protesting the discharge with his union under a current collective bargaining agreement. He also filed a claim for benefits with the Illinois Division of Unemployment Insurance on July 19, 1976. The claim for unemployment benefits was contested by plaintiff on the grounds that Cauble had been discharged for misconduct connected with his work pursuant to the provisions of section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1975, ch. 48, par. 432(A)).
During the processing of his claim for unemployment insurance benefits, the Union pursued the grievance on Cauble's behalf under steps prescribed in the collective agreement. Plaintiff met and conferred with Union representatives concerning the grievance and on July 29, 1976, a final and binding settlement of the grievance was reached by plaintiff and the Union through which Cauble's discharge was converted to a suspension of approximately two weeks without pay. The grievance settlement specifically acknowledged the grave nature of Cauble's actions, stated that future "infractions" would result in discharge, and acknowledged that Cauble was guilty of "misconduct connected with his work."
On August 3, 1976, a claims adjudicator for the Division of Unemployment Compensation awarded unemployment benefits to Cauble. He determined that Cauble was not "negligent or careless by intent" and therefore not guilty of "misconduct." The claims adjudicator's determination stated:
"The Claimant was terminated because he threw a switch with a safety tag on it. However, he did [so] at the direction of a senior employee which he was working with as a helper. There is no evidence shown that the claimant was himself negligent or careless by intent * * *."
Plaintiff appealed the adjudicator's ruling and a hearing was conducted in connection with that appeal before a hearing referee. Although acknowledging Cauble's violation of a "reasonable company rule," the hearing referee's decision affirmed Cauble's eligibility for benefits on the basis of "mitigating circumstances." The hearing referee's conclusions stated:
"The Referee concludes from the evidence and the record that the claimant was discharged for reasons other than misconduct connected with his work. Although the claimant did violate reasonable rules, the mitigating circumstances do not warrant the classification of a `discharge for misconduct connected with his work.'"
Plaintiff then filed an appeal with defendant Board. Since the Board did not find that Cauble had engaged in conduct evidencing "intent" or "scienter," it upheld Cauble's claim for benefits. The Board's decision stated:
"The Referee correctly found that the claimant's action in throwing a safety switch on machinery which was tagged at the time was not intentional, nor was it gross negligence, notwithstanding that it violated a reasonable work rule of the employer and the union. The claimant had very limited experience in his job and he was told to throw the switch by a senior employee with whom he was working and who, he assumed, was giving him proper instructions. Accordingly, we find that the claimant was not subject to a denial of benefits under the provisions of Section 6028 of the Act."
Plaintiff then sought a review of the Board's decision by filing in the Madison County Circuit Court a complaint under the Administrative Review Act. The trial court's order affirmed the Board's decision that Cauble was eligible for unemployment compensation. That order defined the issues as:
"1. Whether or not the Board of Review of the Department of Labor erred in finding that the employee, Cauble, was not in violation of ...