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

KELLY M PROCHNOW, Employee

RUCON CONSTRUCTION MFG, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401646


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 two years and nine months as a general construction laborer for the employer, a residential construction business. The employee quit on June 6, 2006 (week 23) over serial mistreatment by the owner that began on May 31, 2006.

On May 31, 2006, the owner severely criticized the employee and two other co-workers for work they had done on trim finishing. The owner shouted at length using obscenities that the work was unacceptable and that he had documentation that these workers had done substandard work for at least the past year. Out of frustration, the owner shoved a piece of trim in the pile which almost struck one of the co-workers. The employee and his two co-workers believed that the humidity caused the problem but were afraid to say anything to the owner because of his volatile demeanor that day. The employee and the two co-workers continued to feel intimidated upon the owner's return to work on June 5 but no outbursts occurred that day.

At approximately noon on June 6, 2006, the owner shouted at the employee and another co-worker separately because the trim work they had finished that morning was too rough. The owner concluded that the workers had not adequately sanded the twelve pieces of trim. The owner accused the employee of going through the motions while he was working and informed the employee of the inadequate sanding job he and his co-workers had done that morning. The owner added that the employee "was not worth a damn after returning from a long weekend" and felt as though he had to retrain the employee after every long weekend. The owner also stated he was sick of paying people to do the same job twice and that the workers could fix the trim on their own time that day when their shift had ended.

During this specific outburst, the employee told the owner not to talk to him like that and demanded that the owner treat the employee like a human being. The employee informed the owner he could not stay late that day because of a childcare obligation. The owner told the employee that if the employee was unhappy no one was keeping him there. The owner shortly left the worksite. Soon after, the employee called the owner's son, a co-owner, and informed the son that he was quitting immediately due to the hostile work environment.

The issue for review is whether the employee's quitting is for any reason constituting an exception to the quit disqualification. The most relevant statutory exception is (7)(b) "good cause attributable to the employer." Courts have defined "good cause attributable to the 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 Dept., 94 Wis. 2d 106, 120 (1980). Generally, employees are expected to seek alternatives short of quitting. Here, given the serial outbursts of the owner, seeking alternatives short of quitting proved futile on the employee's part. Additionally, the employee felt intimidated by the owner's conduct which included the incident where the owner shoved a piece of trim narrowly missing a co-worker. Under these circumstances, the commission is satisfied that the employee established that the owner's serial outbursts were real and substantial so as to justify the employee's quitting.

The commission therefore finds, that in week 23 of 2006, the employee terminated his employment 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 23 of 2006, if otherwise qualified.

Dated and mailed November 30, 2006
prochke : 135 : 8   VL 1005.01  VL 1080.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

Because the commission reaches a different legal conclusion based on essentially the same set of facts as found by the ALJ the commission did not confer with the ALJ as to credibility.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/12/04