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


MICHAEL B HODGEMAN, Employe

B & D SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97201997RL



On December 18, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that the employe quit, but not for a reason which would allow benefits. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On February 25, 1998, the appeal tribunal issued a decision which affirmed the initial determination. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

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 the employer, a construction company, for about six months as a laborer. His last day of work was December 8, 1997 (week 50).

During the employe's last few weeks of work the brakes on the employer's flatbed truck began "acting up" intermittently, and the employe felt they were unsafe. At some point during his last week the employe notified the foreman that there were hardly any brakes there and that he was just pushing on the floor. The foreman told the employe he should continue to drive the truck. The employe also notified the employer's owner that the brakes did not work all the time, to which the owner responded that when he figured out what was wrong with the brakes he would get them fixed.

The employe continued driving the truck for the employer. On his last occasion driving the truck, on Friday, December 5, 1997, the brakes had become so bad he could hardly stop the vehicle. The following Monday the employe was again instructed to drive the truck, but told the foreman that he would not do so because he feared for his safety. The employe quit that day (week 50).

The issue to resolve is whether the employe's quitting was for a reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employe 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 employe 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 employe's resignation is caused by some act or omission by the employer which justifies the employe'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 employe contended that he quit because he was required to use equipment that was unsafe and that his quitting was with good cause attributable to the employer. The commission agrees. Depending upon the circumstances, dangerous working conditions may justify an employe's decision to quit his or her employment. In this case, the evidence demonstrated that the brakes in the employer's flatbed truck did not function properly and were unsafe. Although the employe notified the employer of the problem, the employer took no steps to address the employe's concerns and continued to ask the employe to drive the unsafe vehicle. An employer is obligated to remedy an unsafe working condition of which it has notice. The employer's failure to do so in this case, along with its request that the employe continue operating the unsafe vehicle, amounted to a substantial fault on the employer's part which provided the employe with good cause for quitting.

The commission, therefore, finds that in week 50 of 1997 the employe 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 appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 50 of 1997, provided he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed: July 30, 1998
hodgemi.urr : 164 : 6 VL 1080.22

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that she did not believe the employe's testimony that he told the foreman the brakes were not functioning but was told to drive the truck anyway. The administrative law judge indicated that she did not think the foreman would take such an abrupt attitude and, further, that she did not believe the employer would want the employe driving a truck without brakes. However, the foreman did not appear at the hearing, and the employe's testimony that he was ordered to drive the truck after reporting that it had no brakes went unrebutted. Moreover, the employer's owner agreed that the employe told him the brakes were defective, and testified that they were repaired after the employe quit. Consequently, the commission sees no reason to doubt the employe's testimony.


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