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


GORDON M CHRISTOPHER, Employe

HO CHUNK NATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97005417WR


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about four years as a security officer and supervisor for the employer, an American Indian tribe, at one of the casinos it operates. His last day of work was September 12, 1997 (week 37), after which he was on sick and vacation leave. He quit his employment on October 10, 1997 (week 41) after deciding not to return to work from the leave.

The employe is allergic to cigarette smoke, a fact the employer has been aware of since at least 1995 when the employe presented it with a doctor's note. The employe worked most of his tenure with the employer on third shift, in part to minimize his exposure to the cigarette smoke in the casino. The ventilation in the casino is poor, exacerbating the smoke problem. In the employe's job, he was required to work inside the casino. Due to continuing health problems with the cigarette smoke, the employe sought other positions with the employer without success.

Following his last day of work, the employe took a month's paid leave to assist his widowed mother. While there, he saw a doctor. Following an examination, the doctor advised him to quit his job and find work in a smoke free environment due to his allergy to cigarette smoke. The employe contacted the employer and resigned his position citing the doctor's advice and his dissatisfaction with a grievance proceeding that was pending with the employer but unresolved.

The issue is whether the employe quit for any reason permitting benefits.

The statutes permit a worker to voluntarily terminate employment in the case of health problems which make continued employment impossible, but only where the employe has pursued and exhausted the reasonable alternatives short of quitting, and only where the employe remains generally able to work and available for work after the quitting.

Although the employe had other complaints with the employer, his primary reason for quitting was that he was allergic to the cigarette smoke in the employer's establishment and had been advised by a doctor to seek work in a smoke free environment.

The employer argues that the employe had not exhausted his reasonable alternatives prior to quitting. In particular it argues that he should have sought a leave of absence. This is not a reasonable alternative since the employe had had this condition since childhood and it was not subject to improvement. When the employe returned to the work place he would still be allergic to cigarette smoke.

At the hearing, the employer argued that it might have been able to find something for him if he had asked. There is no evidence that any position would have been found for the employe and the employer offers no particular position that could have been given to the employe. The employer had made accommodations to the employe throughout his employment in terms of scheduling to try to minimize his exposure to cigarette smoke. His doctor finally advised a completely smoke free environment which the employer could not provide. Further the employe had sought unsuccessfully for other work with the employer on his own. Only the employer's executive facility was smoke free. There is little indication that the employer could have accommodated his need for a smoke free environment. The commission is satisfied that the employe exhausted the reasonable alternatives to quitting during the course of his employment.

The remaining issue is whether he was able and available to perform suitable work otherwise available in his labor market despite his requirement that he work in a smoke free environment.

The hearing in this matter did not adduce necessary testimony to allow the commission to determine whether the employe was able to work and available for work in his labor market following his quitting. Accordingly, the commission will remand that issue to the department for investigation and determination.

The commission therefore finds that in week 41 of 1997, the employe terminated work with the employer because he was unable to do that work but had no reasonable alternative, within the meaning of Wis. Stat. § 108.04 (7)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the department for investigation and determination of whether the employe was able to work and available for work in his labor market beginning in week 41 of 1997.

Dated and mailed: February 27, 1998
chrisgo.urr : 178 : 2 VL 1023.12 VL 1023.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge prior to reversing. Its decision is not based on any differing assessment of witness credibility but on a different legal conclusion when applying the law to essentially the same set of facts.

cc: HO CHUNK NATION
RAINBOW CASINO


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