MARY K MENNEN-METTLER, Employee

UNITED SIGN CORPORATION OF ALLOUEZ INC, Employer

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 agrees with the ALJ that the employee is eligible for benefits, but modifies the ALJ's decision as follows:

The FINDINGS OF FACT AND CONCLUSION OF LAW section is deleted and the following substituted:

The employee worked more than five years in design and sales for the employer, a sign manufacturer. Her last day of work was December 30, 2005 (week 53).

On Friday, December 30, 2005, the employer's owner advised the workers who were present, including the employee, that he was having the locks changed and the last person to leave that day should walk through the shop, and that workers should turn in their keys and would get their keys for the new locks the following Monday.

The employee failed to report for work after December 30, 2005.

The employee has represented in support of her claim for benefits that the employer's actions in changing the locks and not giving her a key for the new locks was an effort to force her out, and the owner's request that she turn in her keys for the old locks should be interpreted as a discharge as a result. However, the employee did not report for work the following Monday to see whether the employer would give her a key for the new locks, or attempt to verify with the employer the status of her employment before concluding that the relationship had been severed. Instead, the employee started her own business in competition with the employer the following week, as evidenced by a proposal (exhibit no. 1) she prepared for a prospective customer on her business stationery the following Tuesday, January 4, 2006.

Although the appeal tribunal decision also cited the employer's request that the employee turn in her cell phone as evidence supporting a conclusion of discharge, the employee does not cite this as a reason for concluding that the employment relationship had ended, and the evidence as to the ownership of, and possession of, the cell phone is confusing and inconsistent.

As a result, the separation was a quit, not a discharge. The employee failed to show or even allege that she was treated differently in regard to the changed locks than any other employee, and did not verify her employment status before failing to report for work following December 30.

The next question then is whether the circumstances surrounding this quit satisfy any exception to the quit disqualification.

The only exception which could arguably apply 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." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); 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 she 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 she is considering terminating her 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). Good cause attributable to the employer has been found where an employee has notified the employer of such concerns, and the employer has failed to take reasonable and necessary steps to address them, 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); Pinkos v. Burgess Car and Truck Service Center, UI Hearing No. 03604628MW (LIRC Nov. 26, 2003).

The employee alleges that the employer, despite repeated requests from the employee, failed to pay certain commissions and $400 monthly mileage reimbursements owed to her, and failed to provide health insurance coverage for a period of time even though such coverage had been promised to her upon hire. Even though the employee did not prove that she was owed commissions at the time of the separation, she did prove that the employer owed her mileage reimbursements, which he had agreed to pay on the tenth of each month, for at least three months at that time and had failed to provide insurance coverage, as promised at hire, for several months, or to otherwise reimburse her for at least $5,000 in insurable medical expenses she had incurred. The record also shows that the employee had made repeated requests for these reimbursements before quitting her employment.

These circumstances provided good cause attributable to the employer for the employee's quit. See, Zunker v. On Cue, Inc., UI Hearing No. 99400005AP (LIRC April 16, 1999)(employer's payment of less in earnings than promised provided good cause for quit); Raymond v. Rawson Plumbing, Inc., UI Hearing No. 99608668MW (LIRC March 30, 2000)(employer's failure to make timely insurance premium payments as promised provided good cause for quit); Zahn v. Brooke Builders, Inc., UI Hearing No. 06001035JF (LIRC July 27, 2006)(employer's pattern of failing to pay employee in timely manner provided good cause for quit).

The employer, in its petition, contends that the employee was provided the opportunity to enroll in an emergency health insurance plan while the employer was searching for alternative insurance. However, this information, as well as certain other information relied upon by the employer in its petition, is not a part of the hearing record. The employer's owner, who authored the petition, did not testify at the hearing. The commission, of course, may only rely upon the evidence received into the hearing record in rendering its decision, and the employer has offered no reason which would merit granting further hearing in this matter.

The commission therefore finds that, in week 53 of 2005, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that, in week 53 of 2005, the employee voluntarily terminated employment with the employer, but did so with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

The decision of the administrative law judge, as modified, is affirmed. The employee is eligible for benefits beginning in week 53 of 2005, if otherwise qualified.

Dated and mailed August 16, 2006
mennema . urr : 115 : 1  VL 1059.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

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