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

MARCIE J BIERMAN, Employee

BARBIER AUTO BODY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01401580MN


On April 8, 2001, the Department of Workforce Development issued an initial determination which held that the employee's quit was not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on June 26, 2001 in Manitowoc, Wisconsin before a department administrative law judge. On July 27, 2001, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter is now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked approximately eleven months as an office manager for the employer. Her last day of work was on or about April 13, 2001 (week 15), following a letter of resignation she had submitted two days previously. The issue in the case is whether the employee's quit was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04 (7)(b). The commission concludes that it was, and so reverses the appeal tribunal decision.

The employer is a body shop, and so purchases vehicles in order to disassemble them for parts. The employer purchased two vehicles from a Mr. Clark, but the latter's name was not on the titles of the vehicles. The owner of the employer asked the employee to title the vehicles in the company's name as buyer. The employee refused, stating that that would be illegal, and shortly thereafter submitted her resignation.

Wisconsin statute § 108.04(7)(b) states that the general quit disqualification of Wis. Stat. § 108.04(7)(a) is inapplicable if an employee terminates his or her work with good cause attributable to the employer. The statute specifically includes as good cause "a request, suggestion, or directive by the employing unit that the employee violate federal or Wisconsin law."

Failure to document a change of ownership in a motor vehicle is considered "title jumping," and is illegal in Wisconsin. This is what the owner asked the employee to do, however, when he asked her to list the employer as the buyer on the titles in question. This is because the seller of the vehicles was not whoever was listed on the titles, but rather the Mr. Clark who sold the vehicles to the employer. The employer, by asking the employee to do this, placed the employee, a licensed car salesperson, at risk of license suspension or revocation, and even of civil fine, forfeiture, or criminal charges. Given these factors, the commission concludes that the employee's quit was with good cause attributable to the employer.

The commission therefore finds that, in week 15 of 2001, the employee terminated work with the employer, with good cause attributable thereto, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 15 of 2001, if she is otherwise qualified.

Dated and mailed November 20, 2001
biermma . urr : 105 : 8 VL 1005.01  VL 1080.12

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge had found the employee credible, but believed she weakened her case by testifying as to matters which had occurred several months before the end of the employment. The commission cannot conclude, though, that such testimony negates the credibility of her testimony regarding the titling of the vehicles in question. The administrative law judge's reasoning would have the effect of placing parties in a catch-22 with regard to how much evidence they should present in support of their case. The hearing before the administrative law judge is a party's only opportunity to present evidence, as review by the commission or by the courts is a review of the record made before the administrative law judge. The commission hesitates to penalize a party on the grounds of the "strength" of their case simply because that party has more than one reason for a quit of employment (and of course the same reasoning would apply to an employer who raises multiple reasons for an employee's discharge).

cc: Attorney Terence P. Fox


 

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/11/26