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

JUSTIN J STEINKE, Employee

CLEMMENT CABINETRY LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06403072AP


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a custom cabinet manufacturer, for about two and a half years as a production worker and delivery person. His last day of work was November 8, 2006 (week 45).

On September 26, 2006, the employee was asked to make a delivery to Chicago, but refused to do so. The employee expressed a concern that there might not be help unloading the shipment when he got there. After the employer contacted the customer and confirmed that the employee would receive help unloading, the employee refused the delivery on the ground that he might fall asleep on the way back from Chicago. The employee was told that refusal to take the load could result in his discharge, but he would not reconsider.

The employer did not immediately discharge the employee for refusing the load. It later asked the employee what would happen if it assigned him a trip to Chicago again. The employee responded that he would refuse. The employer then asked the employee whether he would accept a transfer to a production job, which did not involve deliveries. The employee refused on the ground that he took frequent time off work to attend fishing tournaments, but would be unable to do so in a production job. The employee was then notified that his services were no longer needed.

The initial question to decide is whether the employee quit or was discharged.

An employee may be found to have voluntarily terminated his or her employment despite the fact that the employee has never expressly stated, "I quit." For unemployment insurance purposes, a quit can include a situation in which an employer actually discharges a worker. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980). An employee can voluntarily terminate employment by knowingly refusing to take action which would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis. 2d 181, 188 (Ct. App. 1983). An employee may demonstrate an intent to leave his or her employment by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson, Wis. 2d at 119; Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953).

The employee's job required him to make deliveries, but the employee would not perform those duties if it meant he had to drive to Chicago. The employee had been told that refusal to make deliveries to Chicago could cost him his job, but did not waver in his refusal to do so. The employer then suggested that the employee could have a full-time job in the plant, but that such job would not afford him the flexibility to take time off for fishing tournaments that he enjoyed in his current position. The employee said he was not interested. The employee's refusal to perform the duties of his job or transfer to a different position were inconsistent with a continuing employment relationship. The commission believes that the separation from employment under these circumstances is best characterized as a voluntary quit.

The next question to decide is whether the employee's quitting was with good cause attributable to the employer or for any other reason permitting the immediate payment of benefits.

The employee quit because he did not want to drive to Chicago, suggesting that to do so would present safety concerns. However, the commission is unpersuaded that the employee's refusal was due to legitimate safety concerns. The employee's initial rationale for refusing to drive to Chicago was that he might not have help unloading. It was only after this concern was addressed that the employee raised a concern about falling asleep on the way back. The employer testified that the travel time from its plant in Weston, WI, to the customer, located northwest of Chicago, should take under four hours, with another two to three hours to unload. The commission does not consider this travel time to be so excessive in length that a person whose job it is to drive deliveries should refuse the trip on safety grounds. The employee did not offer any evidence to suggest that he has a medical or other personal reason that would warrant a particular concern about staying awake. Finally, the commission notes that the employer offered the employee an alternate position, which he refused because he wanted to retain the flexibility to take time off to attend fishing tournaments.

The commission, therefore, finds that the employee voluntarily terminated his employment in week 45 of 2006, within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason permitting the immediate payment of benefits.

The commission further finds that the employee was paid benefits in weeks 45 through 48 of 2006 and weeks 4 through 7 of 2007 in the total amount of $1,286, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 45 of 2006, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $1,286 to the Unemployment Reserve Fund.

Dated and mailed April 23, 2007
steinju . urr : 164 : 1 VL 1035

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: Although the commission conferred with the administrative law judge prior to reversing, the administrative law judge had no credibility or demeanor impressions to impart to the commission.


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