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

DANIEL J KAUFMAN, Employee

JMS CONVERTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04403441AP


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 1.5 years as a maintenance mechanic for the employer, a manufacturer of paper products. His last day of work was August 26, 2004 (week 35).

On August 13, 2004, the employee gave the employer two weeks' notice of his intent to resign. However, he left his job on August 26, 2004, 1.5 days before the end of this two-week period, without explanation.

The federal Occupational Health and Safety Administration (OSHA) conducted inspections of the employer's safety practices between May 10 and July 2, 2004. OSHA issued several citations relating to such practices on September 17, 2004. None of these related directly to tasks assigned to the employee.

The employee contends that he quit because he was required, despite his numerous complaints to management, to engage in an unsafe practice, i.e., installation of safety guards in close proximity to moving machine parts. The employer contends that the employee represented that he quit because of dissatisfaction with his pay, and denies that management required the employee to engage in an unsafe practice or that he complained about being required to engage in such a practice.

There are several factors which tend to undermine the employee's credibility, or the plausibility of his version of events, including the following:

(1) The employee testified that, when he met with Mike Sabee, the employer's president, on August 31, five days after he had left his job, he stated he was willing to come back to work for the employer because he had learned of the OSHA citations and concluded as a result that the work place would now be safer. However, the OSHA citations were not issued until September 17, 2004, more than two weeks later.

(2) The employee testified both that, on August 31, he told Mike Sabee that, if he came back to work for the employer, he "wanted more money because of the unsafe working conditions;" and that, as of August 31, he was willing to come back to work for the employer because he'd "be safe" after the OSHA investigation.

Since, however, the employee could not have known on August 31 that OSHA would be requiring the employer to remedy certain safety violations, his representation to the employer that he would be willing to return to work if his pay were increased supports a conclusion that it was pay, not safety, which precipitated his decision to quit.

(3) The employee testified that he never complained to Nancy Pingel because, although he knew she was the employer's safety coordinator, he thought it meant only that she instructed the safety classes, turned on the machine for watching safety videos, or administered the safety tests. However, he earlier testified that, "Mike Sabee would tell someone to work on the machine and then the Safety Director, Nancy Pingel, would come by and write them up for not using the Lock Out Procedures." Obviously, the employee was aware that Pingel's safety responsibilities involved more than conducting classes/tests and turning on the video machine.

(4) The employee testified that he reported his safety concern to OSHA after he quit, but later testified that he did not file a complaint with OSHA after he quit.

(5) The employee testified as follows: "I couldn't say how many times I was directed to work on equipment while it was running. It was more than 10 times. I can't say if it was more than 100, but it was a lot. It happened 3-6 times per week and sometimes 20 times per week." If he complained at least 3 times per week, over the course of his employment, this would mean that he complained at least 225 times. He later testified that he "protested to management every day about having to do this." If he complained every day during the course of his employment, this would mean that he complained 375 times, even though he earlier testified that he couldn't say it was more than 100.

(6) The witness who testified that she observed the employee installing guards while machine parts were operating six inches from his face was the employee's girlfriend who was terminated two months after he quit. Moreover, although both she and the employee testified that the employer ignored safety requirements, she received one warning for violating the employer's machine lock out policy (2/26/04), and two warnings for failing to wear required safety equipment (4/15/04 and 7/28/04). (exhibit #10)

(7) It seems unlikely that the employer would require the employee to continue to engage in a practice, about which he complained every day and as many as 20 times a week, and which required him to place his body six inches away from unguarded moving machinery parts, while OSHA inspectors were present, i.e., from 5/10-7/2/04. The employee admits that there were OSHA representatives present while he was working. It also seems unlikely that, if this were going on each day as the employee claims, the OSHA inspectors would not have observed it.

Wisconsin Statutes § 108.04(7) provides that an employee who quits his employment is ineligible for benefits until he requalifies, unless his quitting falls within a statutory exception. The exception which the employee contends is applicable here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." This has been defined as a real and substantial act or omission by the employer that reasonably justifies the employee's decision to become unemployed rather than to continue working. See, Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that he explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that he is considering terminating his employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Milw. Co. Cir. Ct. Aug. 5, 2002);   Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999).  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, Case No. 00-CV-7743 (Milw. Co. Cir. Ct. Mar. 20, 2001); Lichtfuss v. Bemis Specialty Films, UI Hearing No. 98402102AP (LIRC July 30, 1999).

The employee failed to sustain his burden to prove, by a preponderance of the credible evidence of record, that he was directed by the employer to install machine guards in an unsafe manner, reported his concern about such an unsafe installation practice to the employer, or was primarily motivated by safety concerns, not his pay, when he quit. Absent such proof, the commission concludes that the employee failed to sustain his burden to prove good cause attributable to the employer for his quitting.

The commission concludes as a result that, in week 35 of 2004, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in the amount of $6474.00, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 35 of 2004 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $6474.00 to the Unemployment Reserve Fund.

Dated and mailed January 28, 2005
kaufmda . urr : 115 : 4   VL 1005.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did conduct a conference with the administrative law judge before reversing her decision. The administrative law judge credited the testimony offered by the employee and his girlfriend, rather than that offered by the employer. It was apparent to the commission, as a result of the conference, that the administrative law judge based this credibility determination on her assessment of the relative plausibility of the versions of events offered by the employee and employer, rather than witness demeanor. As detailed above, the commission reached a different conclusion based on its review of the evidence of record. One of the only specifics offered by the administrative law judge was that she had not credited the testimony of employer witness Dwight Sabee because he had testified (page 16 of summary of proceedings) that the employee had never complained to him that he was required to install guards while the machines were still in operation, but later testified (page 17 of summary) that the employee had complained to him once about safety concerns, but he couldn't recall specifically the subject of such concerns. However, these statements are not necessarily inconsistent, i.e., the second statement relates to the reporting of an unspecified safety concern which may or may not have related to installing guards on operating machinery.

cc: Attorney Patrick P Gill


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uploaded 2005/02/02