BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

KIM R PETERSON, Employee

Involving the account of

R & L MANAGEMENT COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92604536MW


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, benefits are allowed, if the employe is otherwise qualified.

Dated and mailed April 1, 1993
135 : CD0991 VL 1080.22

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


MEMORANDUM OPINION

The employe worked approximately three and one-half years as a night manager and teller for the employer, a check cashing service. The employe voluntarily terminated her employment on April 2, 1992 (week 14).

The employe worked in a high crime area in the city of Milwaukee. The employe worked on Thursdays and Fridays from 4 p.m. until 12 a.m. at which time she closed the employer's business. Frequently, a 71 year old security guard was on duty. While the employe performed her work she was housed in a bulletproof cashier's cage which was impregnable, protecting her from any attack. During the course of the employe's employment, the employe witnessed several robberies inside the store and immediately outside of the employer's store. On one occasion, a man who had been shot outside came into the employer's place of business, asked for the police and then died in front of the employe. On March 27, 1992, the employe watched while a customer was accosted by a robber immediately outside of the employe's premises. A robber held a gun to the customer's head and stole the customer's money and car. After witnessing this, the employe became so upset that she wrote a note to the employer and "faxed" it to his home. The gist of the note indicated that the employe was scared as a result of the customer robbery and that she needed security or she would resign. The employe returned to work on her next scheduled shift and worked through April 1. However, when the employe was scheduled to close at midnight on April 2, the employe failed to report to work and voluntarily terminated her employment.

As the Administrative Law Judge determined, the issue to be resolved, is whether the employe had good cause attributable to the employer for quitting, pursuant to section 108.04 (7)(b) of the Statutes. Under Stetz v. DILHR et al; Dane County Circuit Court Case No. 136-215, 2/13/73, good cause attributable to the employer can be determined if such quitting is a reasonable reaction to some act on the part of the employer. In other words, the "good" relates to the reaction of the employe, and not whether the employer had good cause for the action it did which precipitated the employe quitting.

At the hearing, the employe explained that she often complained to the employer about safety conditions. Approximately a year before quitting, the employe requested that safety cameras be installed. The employer promised safety cameras as well as blackened windows in the summer of 1991. However, none were provided. The employe asked to be transferred to another store. She also requested that another employe be assigned to work with her when she closed at midnight. The employer explained that it could not accommodate the employe in either matter. The employer, on the other hand, did spend thousands of dollars on other items in an effort to provide a secure working environment. For example, it installed a bulletproof cashier's cage and alarm buttons that would immediately contact the police during times of emergency. Additionally, the employer hired a security guard and paid the employe's boyfriend to escort the employe home at night when the security guard was unavailable. Additionally, the employer explained that the employe's supervisor had intended to work with the employe on April 2 until closing. This information, however, was never relayed to the employe.

The Administrative Law Judge found that the employe established that she quit with good cause attributable to the employer. He reasoned that while the employe may have been secure from personal physical assault while she was working, she was not secure from emotional assaults of witnessing violent crimes. Additionally, the employe was not safe while she closed the shop and when she had to leave the building and lock it up. The Administrative Law Judge further found that the employe exhausted all reasonable alternatives short of quitting and that her safety concerns were not properly addressed by the employer, despite its expensive bulletproof cage and alarm system.

The Commission is extremely sympathetic to the employer's argument that it is not personally responsible for the safety of the neighborhood in which the employer's business is located. Generally the Commission has found that employes who quit over safe environment concerns often fail to establish good cause attributable to the employer for quitting. For example, the Commission found the employe did not establish good cause attributable to the employer in Renee Thimm v. Pieper Electric, LIRC 2/7/90. In Thimm, the employe, a female electrician requested the employer assign her to work on the Milwaukee Public Schools contract in areas she deemed safe. The employe quit when the employer could not accommodate her. The Commission found no act or omission by the employer that constituted a fault. Additionally, the Commission concluded that the employe's concerns about crime in the neighborhoods, although real to her, were unsubstantiated.

The facts in this case are distinguishable from the Thimm case. Here, the employe was able to substantiate her concerns about crime in the neighborhood. After all, the very nature of the employer's business may attract individuals intent on preying on the employer's customers after they leave its store. The Commission realizes that the employer is not responsible for these individuals or their actions. However, a situation can and does heighten an employe's awareness of safety concerns. This is certainly true in this case.

For example, the employe requested the installation of a surveillance camera and blackened windows in the summer before she quit. Although the employer promised, it failed to satisfy the employe's legitimate safety request. Additionally, when the employer requested that she personally be accommodated for safety reasons (i.e. another employe present at closing) she was told it could not be done. Thus, despite the expense of the alarm system (which failed on at least one occasion) and the bulletproof cashier's cage, the employe still had legitimate safety concerns that the employer was not fully addressing. Therefore, the employer's failure to provide the employe with an environment in which her safety concerns were fully addressed provided the employe with good cause attributable to the employer for quitting. While the Commission believes that employers are not responsible for the deterioration of neighborhoods in which their businesses are located, employers are responsible for insuring a safe work environment and adequately addressing sincere safety concerns and request made by their employes. Therefore, in this very limited instance, the Commission concludes that the employe voluntarily terminated her employment with good cause attributable to the employer within the meaning of section 108.04 (7)(b) of the Statutes. The Commission notes for future reference that each situation will be addressed on a case by case basis when determining whether an employe has established good cause attributable to the employer when quitting.

Finally, the Commission treated the owner's testimonial in his affidavit as newly discovered evidence. However, the Commission did not afford the affidavit much weight. Although the affidavit establishes the employe recently accepted employment at another check cashing facility in an inner city neighborhood, the affidavit does not establish that the employe secured employment at a similarly situated check cashing facility.

 

PAMELA I. ANDERSON, (dissenting):

I unable to agree with the result reached by the majority herein and I dissent.

I do not believe the surveillance camera and blackened window would not have added to the employe's security while she was in the bulletproof cage and I do not see how they would be of assistance as she was coming or going from the employer's premises. The employer also agreed to pay her boyfriend to escort her out of the employer's workplace at the end of the shift. The employe only made use of this service while the security guard was sick. The employer would have continued to pay her boyfriend.

All of this as well as the fact that she returned to the same kind of work with a different employer, requires me to find that she did not have good cause attributable to quit. Therefore, I would reverse.

Pamela I. Anderson, Chairman

cc:
Attorney Carol McHugh
Arnstein & Lehr

Michael T. Sheedy
Castellani Sheedy & Association

 

[Appealed to Circuit Court, Affirmed 12/09/94].



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