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

SARA B COOPER, Employee

LANDSCAPE NURSERY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02609727RC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 35 of 2002, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed May 2, 2003
coopesa . usd : 132 : 1    VL 1005.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found she voluntarily terminated her employment but not for any reason that permits the immediate payment of unemployment insurance benefits. The employee states in her petition that she believes the extent of the hostility she was exposed to was not understood by the ALJ, and that the ALJ failed to consider that she was coerced into terminating her employment. However, the commission finds no basis for believing that the ALJ did not consider all the evidence presented at the hearing. While the employee indicates she believes she was forced to quit, the employee agreed at the hearing that she quit her employment and the evidence supports a finding that the employee made the voluntary decision to stop reporting for work.

Based on the employee's testimony, the comments made by the general manager to her were unprofessional, rude, coarse, and offensive. However, the commission has repeatedly found that where an employee believes that she has been subjected to unfair criticism or treatment, the employee must establish that she explored alternatives short of quitting before it can be found that the quitting was with good cause attributable to the employer. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that she is considering terminating her employment over them. See e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., No. 02-CV-00409 (Wis. Cir. Ct. Milwaukee Co. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Dec. Hearing No. 99604071RC (Oct. 14, 1999); 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).   If the employee notifies the employer of such concerns, and the employer fails to take reasonable and necessary steps to address the employee's concerns, good cause attributable to the employer will be found. See e.g, Opportunities Industrialization Center of Greater Milwaukee Inc., v. Barbara Dates & LIRC, No. 00-CV-7743 (Wis. Cir. Ct. Milwaukee Co. Mar. 20, 2001); Lichtfuss v. Bemis Specialty Films, UI Dec. Hearing No. 98402102AP (LIRC July 30, 1999).

In this case, the employee did not alert the employer's owners of her objections to the general manager's conduct. Further, the employee testified that the general manager had not subjected her to such treatment in the past. The evidence did not demonstrate that the general manager's personality was such that raising concerns with the owners would not have changed his behavior in the future. Finally, the employee was aware of the employer's harassment policy. That policy notified the employee that she could report any unwelcome, harassing or hostile behavior to the person next higher in authority from the general manager. The employee's only explanation for not following such procedure was that, "they weren't there that day." The employee sent a letter to the employer complaining about the general manager's behavior, but did not send that letter until she had been absent from work for five days and thereby demonstrated her intent to terminate her employment.

 

JAMES T. FLYNN, Commissioner, (dissenting):

I am unable to agree with the result reached by the majority herein and respectfully dissent. Based on the ALJ's factual findings, the employee made the required contacts with the employer to determine whether work was available, and she was repeatedly told that work was not available. The hostility exhibited toward the employee by the general manager was based on the belief that she had failed to maintain contact with the employer. The general manager was also upset with the employee because she exercised her right to apply for unemployment insurance benefits. If an employee had exhibited similar conduct toward a member of management, or one in a supervisory position, I believe that the majority would have found that such behavior justified a discharge and a denial of unemployment benefits on the basis that the employee's discharge was for misconduct. I believe the same standard should be applied to individuals in authority as is applied to workers such as the employee. No worker should have to tolerate such threatening and unprofessional behavior by the individual placed in authority above the worker.

/s/ James T. Flynn, Commissioner


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