CHARLES E DURANT, Employee

SUPREME VIDEO, Employer

The employee performed services for two adult video/toy stores, Supreme Video (Supreme) located in Oshkosh, Wisconsin, and Special Souveniers Inc. (Special), located in Allenton, Wisconsin. Supreme and Special are separate corporations with separate UI accounts but are owned by the same individual and managed by the same general manager. Departmental records reflect that the employee filed a claim for unemployment insurance benefits as of Friday, September 22, 2006 (week 38).

A total of four determinations were issued regarding the ending of these employment relationships; two determinations dealing with employment suspension issues, one each for Supreme and Special and two determinations dealing with the ultimate separation of employment with Supreme and Special. The employee timely appealed these determinations, with the notices of appeal sent to both parties on November 24, 2006 and December 13, 2006. On January 17, 2007, the four appeal hearings were held. The administrative law judge (ALJ) assigned hearing number 06402801OS as the primary case with the remaining three incorporating that record.

On January 19, 2007, the ALJ issued a decision for hearing number 06402801OS.  ⁽¹⁾   The employer timely petitioned the commission for review of this decision and two others.  ⁽²⁾

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:

The employee performed services as a store manager for Supreme Video (Supreme) located in Oshkosh, Wisconsin and Special Souveniers Inc. (Special), located in Allenton, Wisconsin. He divided his time between the two and averaged between 45 to 65 hours per week. The two retail locations are owned Dan Bishop (owner) and are under the general management of Ben Bishop (general manger). The employee's immediate supervisor was Ryan Hoven (Hoven), a regional supervisor for both businesses.

On September 15, 2006 (week 37), while the employee was at work at Supreme, he felt unable to finish his shift because of feelings of anxiety and being "stressed." He telephoned another of the employer's regional supervisors, Mark Phillips, advising him that he wanted to leave work for the remainder of the day. The employee was allowed to go home.

Later that day, the general manager telephoned the employee. The employee was directed not to return to work until he met with the general manager and the owner. Specifically, the employer understood that the employee was a recovering alcoholic, he had prior problems at work in February involving alcohol, and the employer's management was concerned these problems were recurring. A meeting with the employee was set for Monday, September 18, 2006 (week 38) but was rescheduled for Thursday, September 21, 2006 (week 38). At the Thursday meeting, the employee was informed that the employer was concerned about his health and that the employer wanted him to take some time off until the employee was able to seek medical treatment.

On Thursday, September 28, 2006 (week 39), the employee met with the general manager and Hoven to discuss his employment. At that time, the employee was informed that he would just be performing services at Special; the employee's work with Supreme "was indefinitely suspended, if not terminated." Hoven testified that the owner made the decision based upon concern that managing two locations was too much for the employee and that it would be easier on the employee to concentrate on just one location.

Wis. Stat. § 108.04(6) provides, in part, as follows:

DISCIPLINARY SUSPENSION. An employee whose work is suspended by an employing unit for good cause connected with the employee's work is ineligible to receive benefits until three weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first.

The issue to be decided is whether the suspension of the employee's employment during weeks 37 and 38 was a disciplinary action for good cause connected with the employment. ⁽³⁾

Based upon the foregoing, it is clear that the suspension in this matter was not a form of discipline. Instead, it appears to have been an attempt to decide which course of action was best with respect to the employee and his employment situation. In Messenger v. Fort James Operating Company, UI Dec. Hearing No. 99400520GB (LIRC August 13, 1999), the commission concluded, following a detailed statutory analysis, that only suspensions that were disciplinary fell within the purview of Wis. Stat. § 108.04(6). Specifically, in Messenger, a "proactive" suspension was found not to be a suspension within Wis. Stat. § 108.04(6). Similarly, the commission finds that suspensions for investigations are not disciplinary suspensions. Brown v. Jewel Food Store, UI Dec. Hearing No. 98605057MW (LIRC October 20, 1998).

The commission therefore finds that in weeks 37 and 38 of 2006, the employee's work was suspended but not as a disciplinary action for good cause connected with that work, within the meaning of Wis. Stat. § 108.04(6).

The decision of the administrative law judge is modified to conform to the above findings, amended as to weeks of issue and, as modified and amended, is affirmed. Accordingly, the employee is eligible for benefits in weeks 37 and 38 of 2006, if otherwise qualified.

Dated and mailed March 30, 2007
durach2 . urr : 150   MC 676  PC 717

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The employer petitioned the appeal tribunal decision in this matter, requesting an additional hearing to provide witness testimony from Ben Bishop and Mark Phillips, who did not attend the original hearing. The petition references a postponement request denial and explains that each witness would have "vital & pertinent information relating to this case;" it further explains that Bishop was unable to attend due to a business convention and Phillips was "meeting with a state official for other business matters." Attached to the petition was a "statement" from Mark Phillips regarding his conversation with the employee on September 15, 2006.

Wis. Admin. Code § LIRC 1.04, provides that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. Further, although the commission does have the discretion to order the taking of additional evidence, that authority is only exercised in a few exceptional circumstances.

For the following reasons, the commission will not schedule an additional hearing and will not consider or address the factual assertions made in the petition for review, which are not supported by the record. First, the petitioner never provided dates to avoid prior to the scheduling of the hearing even though it was mailed notices of appeal on November 24, 2006, and again on December 13, 2006, which warned it that,

It is the responsibility of the participants to arrange time off from their everyday affairs, including management duties, work, school, vacation, doctor's appointments, etc. However, if you, your representative and/or witnesses have conflicts attending a hearing, notify the hearing office immediately.

Additionally, while the employer did request a postponement on January 8, 2007, shortly after the January 5 mailing of the notice of hearing scheduled for January 17, 2007, the departmental records of that request are not consistent with the petitioner's claims. In particular, the Senior Administrative Law Judge at the Fox Valley Hearing Office noted the following on January 8, 2007:

s/w [spoke with] Ryan Hoven, Regional Supervisor 262-633-9699 Both he and Ben Bishop (G.M.) are at a consumer electronics show out of state from 1-9 to 1-18. Was scheduled in early 12-06. Unaware he had to let us know of "blackout" dates that were bad for hearing. No PP. [postponement] Must let us know of conflicts. Can send in letter explaining non-appearance.

The original postponement request is problematic because, it makes no mention of Phillips, Ryan Hoven actually appeared for the hearing and no valid reason for not asking for dates to avoid was given, especially when the employer was notified of the claimant's appeal in November. Finally, a review of the digital record of all four hearings indicates that Hoven never renewed the request for the opportunity to present the testimony of Bishop or of Phillips.

cc:
Attorney Connie Smits
Supreme Video (Oshkosh, Wisconsin)

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(1)( Back ) Although the issue for this hearing number was to be the employee's suspension from Supreme in weeks 37 through 39 of 2006 and his eligibility for benefits in those weeks, the actual decision issued by the ALJ dealt with the issue of the termination of employment with Supreme in week 39 of 2006. Although the decision was issued under the header for hearing number 06402801OS, it was a duplicate of the ALJ's companion decision for hearing number 06402979OS. As the ALJ fully developed the record in the matter of 06402801OS, the commission is issuing this decision on the proper issue based upon that record.

(2)( Back ) The commission is issuing companion decisions affirming the ALJ decisions in these matters, hearing numbers 06402979OS and 06402978OS. As a note, the fourth decision issued by the ALJ, hearing number 06402802OS, held that the employee's voluntary termination of employment with Special was not within any exception to allow for immediate benefit payment. The decision denied benefits as of week 40 of 2006 and until the employee requalified for benefits by earning four times his weekly benefit rate in subsequent covered wages and until four weeks elapsed from the week of the quitting. Departmental records further reflect that as of the calendar week ending December 16, 2006 (week 50), the employee satisfied the requalifying requirements and was eligible for benefits, if otherwise qualified.

(3)( Back ) As mentioned, a companion commission decision has affirmed the decision that the employee's work for Supreme was terminated in week 39 of 2006. Thus, the weeks of suspension are weeks 37 and 38 of 2006.

uploaded 2007/03/30