BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


JAMES N. GOSSEN, Employee

AMERICAN SPRING/BRAKE, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-402017


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, the employe is eligible for benefits, if he is otherwise qualified.

Dated and mailed May 1, 1991.

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


MEMORANDUM OPINION

In its petition the employer contends it believes the employe's discharge was for wilful misconduct.

The employer has an employe handbook. Rule No. 2908 is on the dress and appearance code. The applicable provision states:

"All male employes are prohibited from wearing beards. Mustaches must be neatly trimmed and may not extend below the mouth at the corners. Hair is to be cut at or above the collar and part of the ear must be visible.
"...
"Employes in parts and service areas are subject to dress and appearance standards as found in company rules as shown in the handbook or posted on company bulletin boards.
"The purpose of the dress and appearance code is to create a `spirit' and `impression' of a professional and organized staff appropriate to the kind of people we do business with everyday. There are other facets of appearance and dress that we may not have mentioned, but an alert and conscientious employe should recognize this single `spirit' and conduct him- or herself accordingly."

Section 103.14 Wis. Stats., requires that each employer shall, at the time of hiring, notify each employe about and hair style, facial hair or clothing requirement. The employer's handbook does this.

In Consolidated Const. Co., Inc. v. Casey (and DILHR), 71 Wis. 2d 811 (1976), the Wisconsin Supreme Court stated in a grooming code case:

We would emphasize that the ultimate legal question here is not whether Consolidated's grooming code was legally valid, or whether Consolidated could discharge Mr. Casey for his refusal to comply. The question is only whether there was statutory "misconduct." The principle that violation of a valid work rule may justify discharge but at the same time may not amount to statutory "misconduct" for unemployment compensation purposes has been repeatedly recognized by this court. Fitzgerald v. Globe-Union, Inc. (1967), 35 Wis. 2d 332, 151 N. W. 2d 136; Milwaukee Transformer Co. v. Industrial Commission (1964), 22 Wis. 2d 502, 126 N. W. 2d 6. The law presumes that the employee is not disqualified from unemployment compensation, and places on the employer the burden of introducing credible evidence sufficient to convince DILHR that some disqualifying provision -- here "misconduct" -- should bar the employee's claim. Kansas City Star Co. v. ILHR Dept. (1973), 60 Wis. 2d 591, 602, 211 N. W. 2d 488.

Consolidated Construction Co. involved a beard.  Casey refused to shave his beard and was discharged. The court stated that a grooming rule imposed for reasons of safety would be reasonable. The court remanded the case for determination of whether an alternative existed (such as a snood) and whether Casey's beard was, in fact, hazardous. On remand, the Commission found that it wasn't. Benefits were allowed.

In Parpart v. LIRC and Wisconsin Physicians Ins. Corp., Dane County Circuit Court, Case No. 88-CV-5864 (July 26, 1989), a case involving a dress code, the Commission found that the employe was discharged for misconduct because she was in jeans in violation of the dress code, and the employer established the reasonableness of the rule. The court stated that the Commission's legal conclusion that the plaintiff's actions constituted misconduct was reasonable and that, although another view would be equally reasonable, the court would not disturb the Commission's finding.

In this particular case, the employer's witness testified that the reason for the rule was: "It is just our policy." He testified that the employer received no complaints from customers concerning the employe's hair and that there was no safety concern for the employer regarding the length of hair on a male. The employer had no policy concerning hair length for females. The employe worked in the warehouse and rarely saw customers.

The employer has failed to justify its rule as reasons of safety or business necessity. As the employer has not established reasonableness for its requirement that a warehouse laborer's hair be cut at or above the collar and that a part of the worker's ear be visible, the employe's actions are not misconduct.

 


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