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

TINA R GULLI, Employee

CLINTON FOODS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04003206JV


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 about 13 months as a cashier for the employer, which operates a gas station, grocery store and fast food restaurant. Her last day of work was May 30, 2004 (week 23), the effective date of her resignation she submitted. After quitting, she initiated a claim for unemployment insurance benefits.

Wis. Stat. § 108.04(7)(a) provides that if an employee terminates employment, his or her benefit eligibility shall be suspended until four weeks have elapsed since the week of the quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination was with good cause attributable to the employer, or was within another statutory exception. "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)). Further, in determining whether an employee had "good cause attributable," the commission may look to whether the employee's decision to quit was a reasonable reaction by the employee to some act on the part of the employer. Stetz v. DILHR, et al, Dane County Circuit Court, Case No. 136-215 (February 13, 1973).

The issue before the commission is whether the employee's quitting was for any reason permitting the immediate payment of unemployment insurance benefits.

The employee quit after an incident on May 18. When a pump did not properly shut off and spilled gasoline, the employee paged an owner-manager to handle the customer's request for a refund. After the manager had finished with the customer, he picked up a plastic clipboard used to log pump problems and told the employee that she was to report such problems. The remark irked her because she had reported the problem, and she responded in an irritated tone that she was not the only one who worked there and that she had reported the problem. At the time, the employee was working in an enclosed cashier area with the manager standing at the exit of the area. The manager was angered by her response, and threw the clipboard on the floor, where it shattered near the employee's feet.

The manager and the employee never spoke to each other about this incident. However, a few days later, the employee reported it to her immediate supervisor who admitted that he may have forgotten to report the pump problem to the manager. In response to her concern about the clipboard thrown in anger, the supervisor responded that the manager could do what he wanted because he was an owner. Shortly after that, the employee told the supervisor that she was quitting because of the incident, and asked the supervisor to schedule her remaining work to minimize contact with the manager.

The manager admitted that he should not have lost his temper but contended that the employee's quitting was not with good cause attributable to the employer. The commission disagrees. Specifically, an employee has a right to work in an atmosphere free from threats of violence. Welda v. Leonard Burrows Trucking, UI Dec. Hearing No. 03002358WR (LIRC November 25, 2003). The manager's behavior was threatening. In an effort to remedy her concerns about his behavior, she reasonably sought assistance from her supervisor instead of subjecting herself to possible additional threatening behavior. The supervisor's response, that the manager could do as he wished because of his ownership in the business, made it clear that nothing would be done to protect the employee from such future outbursts. The commission finds that her decision to quit was a reasonable reaction to these circumstances. Additionally, the employee's decision to give a one-week notice of quitting does not remove her quitting from the good cause attributable exception, especially since she attempted to avoid contact with the manager/owner for the remainder of her employment.

The commission therefore finds that in week 23 of 2004, the employee terminated work with the employer with good cause attributable to it within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The administrative law judge's decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2004, if otherwise qualified.

Dated and mailed November 10, 2004
gulliti . urr : 150 : 1   VL 1005.01  VL 1080.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing the decision. In particular, the commission's decision is not based upon a differing credibility determination but, instead, upon a differing legal conclusion that the manager's behavior was so substantial and detrimental as to constitute good cause for the quitting especially in light of the supervisor's response when she sought his assistance in the matter.

 


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