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

LEE L WELDA, Employee

LEONARD BURROWS TRUCKING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03002358WR


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a log hauling company, for about two years as a truck driver. His last day of work was October 3, 2002 (week 40). The employment relationship ended on October 7, 2002 (week 41).

On October 3, 2002, the employee was in the woods loading logs onto a truck when the employer's son-in-law, Ron Hayes, who owns a separate logging business, drove up at a high rate of speed, got out of his truck and began to yell at the employee, "I want you to leave and don't come back. It's over. I'm declaring bankruptcy. I'm sick of arguing with [the employer]. I'm sick of arguing with my wife. I'm sick of arguing with you. Fuck you. Fuck everyone. What I'm gonna do is start shooting some of you fuckers." Mr. Hayes then got back in his truck and drove away. The employee had his cell phone with him and considered calling 911, but was concerned that calling the police would cause problems for him with the employer. Later in the day the employee told one of the employer's owners about the incident. She responded that she understood Mr. Hayes has a bad temper. The employee informed the employer that it was a very traumatic experience for him.

The employee did not report for work the following day because he was uncomfortable going out to work with Mr. Hayes. On Monday, October 7 (week 41), his next scheduled work day, the employer called the employee and asked if he was coming to work. The employee asked if he would be hauling wood for Mr. Hayes. The employer indicated he would be. The employee then stated that he did not think he should be working with Mr. Hayes until something was done about his threat to the employee. The employer responded that if the employee was not going to come into work right away they were through talking. Two days later the employee came in to pick up his pay check and, at the employer's request, turned in his keys and credit card. He performed no services for the employer thereafter.

The issue to resolve is whether the employee quit or was discharged and whether he is eligible for benefits based upon that separation from employment.

The employee did not report for work after October 3, 2002, although the employer had continued work available for him. On October 7 the employer made it clear to the employee that if he wanted to retain his employment he needed to report for work at that time. The employee chose not to do so. The employee's actions were inconsistent with a continuing employment relationship and, therefore, amounted to a voluntary quit.

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 employer 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 employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employee quit because he had been threatened while on the job and did not feel safe working in an isolated area with the same individual who had threatened him. The employee brought the matter to the employer's attention, but the employer did nothing to address the situation or to assuage the employee's reasonable concerns about his safety. The employee has a right to work in an atmosphere free from threats of violence. The employer's requirement that the employee continue to work with Mr. Hayes in an isolated setting after the employee had notified it that he was afraid to do so provided him with good cause to quit.

The commission, therefore, finds that in week 41 of 2002 the employee voluntarily terminated his work with the employer, and that his quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 41 of 2002, provided he is otherwise qualified. The employee is not required to repay the sum of $5,862 to the Unemployment Reserve Fund.

Dated and mailed November 25, 2003
weldale . urr : 164 : 1 VL 1005.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission conferred with the administrative law judge who presided at the hearing regarding her impressions of the credibility and demeanor of the witnesses. The administrative law judge indicated that she questioned the credibility of the employee's story because he did not call the police and did not immediately contact the employer. The administrative law judge pointed out that the employee did not contend Mr. Hayes had a weapon and that she did not believe he was in imminent danger. The administrative law judge further indicated that the employee had other reasons for quitting, due to an ongoing pay dispute. However, the employee's testimony regarding his encounter with Mr. Hayes went unrebutted, and while the employer indicated that Mr. Hayes and another witness had a different version of events, neither of these individuals testified at the hearing. Further, the commission does not agree that the employee's failure to call the police or to immediately contact the employer calls his testimony into question. The employee had a good explanation for failing to call the police, his reasonable belief that the employer would be unhappy if he reported its son-in-law to the police, and the employee did bring the matter to the employer's attention the same day it occurred. The employee did not need to see a weapon in order to legitimately feel he had been threatened, nor must he establish he was in imminent danger before the employer can be expected to take his concerns seriously. Finally, with regard to the possibility that the employee had other reasons to quit, the commission sees no reason to doubt that his quitting was precipitated by Mr. Hayes' conduct, particularly where he reported it to the employer prior to quitting and notified the employer that he would not come back unless something was done to address the situation. For all of these reasons, the commission finds the employee's testimony to be credible and concludes he had good cause to quit.


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