DONALD R TAGGART, Employee

HOME CONCEPT INC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The employee worked for the employer, a retail business, for seven months as warehouse manager. His last day of work was July 19, 2001 (week 29).

The employee's job responsibilities included getting truckloads of new merchandise put away on racks in the warehouse and pulling merchandise from the racks when requested by customers. The racks in question were sixteen feet high, and the employer used a hand picker truck, referred to in the workplace as "Raymond," to get boxes up on the racks and retrieve merchandise from the racks. The warehouse was not large, and the widest aisle was only about ten feet in width. Raymond was six feet in length, and it could not be maneuvered through the aisles unless they were relatively clear of other items. Four-foot wide skids full of merchandise were sometimes stored in the aisles and, when there were too many of these, the aisles were not able to accommodate Raymond and products had to be retrieved by ladder. Even if Raymond could fit in under these circumstances, it could not be operated safely because it was then necessary to approach the racks at an unsafe angle.

The employee had continual difficulties performing his job. At some point the employee notified the employer that additional racks were needed in order to accommodate incoming stock. The employer did provide additional racks, but the employee considered this insufficient. The employee frequently become frustrated when new truckloads of merchandise arrived, and would often threaten to leave. A performance review prepared in February of 2001 indicates that the employee required improvement in several areas, including with regard to getting merchandise put away. The employer maintained that, under the employee's direction, the warehouse was unorganized and things were not put away properly, causing a "log jam" situation when new stock arrived.

On the employee's last day of work two shipments of merchandise arrived, and the employee could not figure out how to accommodate it all in the warehouse and safely operate Raymond. The employee complained to the employer's owner, who told him to do the best he could. The owner reminded the employee that, as warehouse manager, putting the stock away was his responsibility. The employee responded that, if it was so easy, the employer's owner should handle it himself. He stated that he was not going to "bust his back" trying to get into the truck to pull things off for customers and to find space for things. The employee then walked off the job.

The question to decide is whether the employee's quitting was for any reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the part of the employer and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employee contended that he quit with good cause because the employer exhibited a continued disregard for safety conditions in the warehouse. The commission disagrees. While the evidence did indicate that storing skids in the aisles could create unsafe conditions in the warehouse, the employee was the warehouse manager and it was his responsibility to organize the warehouse and see to it that the aisles were clear. Although the commission appreciates that the warehouse was small and that it could be difficult to accommodate all of the incoming stock, it nonetheless believes the employee could have done a better job of organizing the warehouse and getting merchandise put away. The commission credits the employer's testimony that, on the employee's last day of work, there was space for additional merchandise and that the warehouse could have absorbed the skids if they had been arranged underneath the racking. The commission also credits the employer's testimony that, since the employee left his employment, its warehouse has been clean with few or no skids left in the aisles. Overall, the commission is unpersuaded that the employee was forced to work under unsafe conditions by the employer and it believes that, to the extent the working conditions may have been unsafe, the employee bore responsibility for creating those conditions.

The commission also doubts the employee's contention that his quitting was related to safety concerns, and believes the safety issue was an after-the-fact justification for his decision to quit for other reasons. Apart from a threat to call OSHA regarding the employer's sprinkler system, the record contains nothing to suggest the employee ever notified the employer that he believed the working conditions were unsafe or gave the employer an opportunity to remedy the situation. Although the employee asked for more racks, he did not tell the employer that this request was intended to address safety concerns, nor is it clear that the employee ever notified the employer that he considered the racks it did provide to be inadequate. The employee repeatedly threatened to quit when truckloads of merchandise arrived, and on his last day of work he complained about the difficulties attendant with unloading two trucks into a crowded warehouse and told the employer he was not going to "bust his back" trying to get the job done. Under all the facts and circumstances, the commission believes the employee walked off the job out of sheer frustration, rather than because of any genuine safety concerns.

The commission therefore finds that in week 29 of 2001, the employee voluntarily terminated his work with the employer, and that his quitting was not with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b), or within any other statutory exception which would permit the immediate payment of benefits.

The commission further finds that the employee was paid benefits in weeks 29 through 41 of 2001 in the total amount of $5208, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because, although the overpayment did not result from the fault of the employee, as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2001 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $5208 to the Unemployment Reserve Fund.

Dated and mailed December 5, 2001
taggado . urr : 164 : 8   VL 1080.22

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that she believed the employee's description of the difficulties in performing his job and did not believe that the employer's proposed solutions were feasible. However, the commission credits the employer's testimony that, with better organization, the warehouse could safely accommodate all of the merchandise and that, in fact, other warehouse managers have been able to do so. More importantly, however, even if the commission were to accept the employee's testimony that the job could not be safely performed, for the reasons set forth in the body of the decision, the commission is unpersuaded that his quitting was motivated by safety concerns and believes he quit out of a general sense of frustration.

Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

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uploaded 2001/12/07