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

WALLACE T PHILLIPS, Employee

WAUKESHA FOUNDRY CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01607920WK


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a foundry, for approximately thirteen years as a radiographic technician / non-destructive testing supervisor. His last day of work was April 27, 2001 (week 17).

In 1990, the employee started asking his supervisor about being promoted. In 1997, the employee applied for the position of supervisor of quality assurance and radiation safety officer. The employee felt that he was most qualified because he has a bachelors degree in business management, supervisory experience, years of working with gamma radiation and cobalt, experience with quality assurance and quality control, plus years of working with radiology. However, the position was given to a white male without a college degree and with much less experience than the employee. On other occasions, the employee was denied a promotion even though people of the majority race received promotions.

In 1998, the employee was given the title of non-destructive testing supervisor. Although the title was added, the employee was not given any additional responsibilities and the employer continued to shut him out. The people he supposedly supervised were told that he was a "nobody and didn't know anything." Executive meetings were held on Saturday at a country club or restaurant, and the employee was never invited. He continued to complain about the way he was being treated and in 1999, he was invited to a few of the managerial meetings.

In 1999, the employee made a recommendation to his supervisor. The supervisor presented it to others on the management team without credit being given to the employee. The recommendation was accepted and implemented.

The employee's supervisor, the president of the company and the engineers would overrule the employee's decisions and question his judgment. In 2001, the employee talked with his supervisor about one particular incident when the supervisor overruled the employee's decision. Subsequently, another radiographic technician confirmed the employee's conclusions. This occurred on at least four occasions. On one occasion, the employee's supervisor overruled the employee's decision. When the part was made, the customer rejected the product. About one year prior to his last day of work, the employee's supervisor told him that he was working too much overtime, even though the human resource manager told him that overtime was mandatory. Three times in 2001, workers supervised by the employee were disciplined without any input from him. Additionally, the employee's supervisor would cause problems between the employee and those he was supposed to supervise. In meetings, the supervisor openly challenged any recommendation or comments the employee made.

On January 24, a management meeting was held and the employee was the only supervisor not invited. Therefore, after considering the matter for hours, the employee made a decision to quit his employment through retirement.

The issue to be decided is whether the employee's quitting was with good cause attributable to the employer.

"Good cause attributable to the employing unit" means some act or omission by the employer justifying the employee's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965)).

The commission finds that the employee did not establish that he quit his employment with good cause attributable to the employer. The commission has consistently held that an employee is obligated to pursue internal remedies before quitting. While an employee is not required to exhaust all alternatives to quitting, in most cases he is expected to at least pursue some resolution to an employment issue prior to terminating his employment. Taggart v. Home Concept Inc., UI Dec. Hearing No. 01402560AP (LIRC Dec. 5, 2001); Lueck v. LIRC & Lutheran Social Services, No. 00-CV-553 (Wis. Cir. Ct. Eau Claire County Apr. 5, 2001); Cooley v. Mean Trucking, UI Dec. Hearing No. 00601582MW (LIRC Aug. 8, 2000); Collier v. Rubbermaid & Co., UI Dec. Hearing No. 99604071RC (LIRC Oct. 14, 1999); Bunnel v. National Building Maintenance Inc., UI Dec. Hearing No. 98401333AP (LIRC Sep. 30, 1998); Lauer v. Bratley d/b/a Kentucky Fried Chicken & LIRC, No. 97-CV-405 (Wis. Cir. Ct. Douglas County July 20, 1998); Bowe v. U.W. Parkside, UC Dec. Hearing No. 97201101EC (LIRC Nov. 25, 1997); Gilkay v. Servicemaster of Stevens Point, UC Hearing Dec. No. 95002242WR (LIRC Sep. 28, 1995).

The employee failed to directly apprise the employer of his belief that he was being subjected to discriminatory treatment and that he was contemplating terminating his employment because of perceived discriminatory treatment. The employee did not give the employer the opportunity to address and remedy his concerns. The most he established was that in the past he raised some concerns, such as not being invited to meetings or receiving a promotion. He did not approach human resources in the last year of his employment about his concerns. He never expressed his concerns with human resources, verbally or in writing, when submitting his termination papers.

The commission therefore finds that in week 17 of 2001, the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $10,557.00 for weeks 20 through 52 of 2001 and weeks 1 through 9 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2001, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $10,557.00 to the Unemployment Reserve Fund.

Dated and mailed March 12, 2002
phillwa . urr : 132 : 8 : VL 1005.01 VL 1080.20 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did speak with the ALJ regarding witness credibility and demeanor. The ALJ indicated that she found the employee to be an extremely credible witness. The commission does not question the sincerity of the employee's beliefs, but finds he failed to give the employer an opportunity to address his concerns before quitting. The commission notes further that the employee's testimony did not establish that every act attributed to the employer was done with a discriminatory motive. For example, while the employee testified that he received conflicting information regarding whether he should work overtime, the employee did not establish that such conflicting information resulted from other than poor communication between the parties involved.

NOTE: 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.

cc: Attorney Mark J. Goldstein


Appealed to Circuit Court. Appealed to Circuit Court.  Appeal dismissed as untimely, July 12, 2002.

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