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

JOHN L PAULSON, Employee

OCONTO FALLS TISSUE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06400059GB


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 seven and a half years as a supervisor for the employer, a paper mill. His last day of work was September 7, 2005 (week 37).

The employee alleged that he quit for a number of reasons. The employee argued that he quit because he believed that the employer was in violation of certain Department of Natural Resources regulations. The employee did not offer persuasive evidence to sustain his allegation in this regard. In fact, the human resources manager, an extremely credible witness, denied that the spills alleged by the employee occurred, while the employee testified he might have been exaggerating about the spills. The employee further argued that he quit because the plant manager called him names and swore at him. While that may be true, the employee also swore at work and he never complained to anyone about the plant manager's actions. The employee asserted that it would not have done any good to complain, but the fact is that he owed the employer the chance to correct the behavior before he quit. Because the employee did not complain, the employer did not get the chance to correct the behavior.

The employee also quit because working conditions were unsafe. The employee testified that the fork lifts and other trucks were not safe. The employee said he had to drive fork lifts with poor brakes and trucks that were unsafe.

The employee complained about the trucks frequently but the trucks were not repaired. The employer's roof leaked and the employee believed it was dangerous to be working on computers or use other electrical devices when the floor was wet. The employer's human resources manager testified that he was aware that fork lifts and clam trucks were not being properly repaired. He characterized this as an ongoing problem, caused by lack of money. He said the employer would try to put trucks in bad shape out of commission but there were occasions when people had to drive them. He was also aware that the roof leaked, and while the employer had funds to patch long-term repair had not been done.

The commission concludes that the employee had good cause attributable to the employer for quitting, based on his safety concerns. The evidence in the record establishes that there were some fairly serious safety issues at the employer that directly involved the employee. The employee complained, during his employment about some of these things. However, even if he did not complain, the employer's human resources manager testified that he was aware of the problems, conceded that they should have been addressed, but testified that at this point the employer was financially unable to adequately address all these issues. Therefore, the employer was aware of the problems and at the time the employee quit, unable to rectify them. As such, the employee's failure to specifically mention these problems shortly before quitting did not deprive the employer of the opportunity to rectify the problems in order to prevent the employee from quitting. The fact that the employee was required to drive unsafe trucks, as well as the other safety issues gave the employee good cause attributable to the employer for quitting.

The commission therefore finds that in week 37 of 2005, the employee quit his work with the employing unit, but 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 37 of 2005, if otherwise qualified.

Dated and mailed April 19, 2006
paulsjo . urr : 145 : 2 VL 1080.22

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not find the employee to be a credible witness, noting that the employee admitted he was prone to exaggeration. The ALJ testified that much of his testimony came across as being exaggerated. The ALJ also testified that the human resources manager appeared to be very forthright and honest, but that he did not have firsthand testimony about a number of these things. The ALJ was skeptical about the employee's testimony about unsafe working conditions, specifically he believed that the employee was exaggerating when he described the water on the floor and the electrical equipment. The ALJ pointed out that the employer credibly testified that the employer was attempting to address any dangerous situations. However, the employer's witness conceded that there were safety issues. While the safety problems were not the result of any intentional action by the employer, and its inability to address them all adequately was for an understandable reason, nonetheless the employee was not required to continue to work in unsafe conditions, in particular he was not required to drive trucks with faulty brakes.


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