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

JANET J MEYERS, Employee

FUN THINGS TOY SERVICE INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600793WK


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 and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked over four years, most recently as warehouse manager, for the employer, a toy maintenance and sanitation business. The employee worked full-time or until her work was complete, typically working 9-10 hours per day, Monday through Thursday. The employee preferred not to work on Fridays in order to assist her mother and the employer typically accommodated the employee in terms of schedule.

In April 2005, while the employee was driving one of the employer's trucks, the truck slid into a ditch as the employee attempted to avoid emergency vehicles that were approaching. The employee was not cited for the incident. The employee contacted the owner, as she was unable to remove the truck from the ditch. Upon the owner's arrival, the owner directed the employee to take the owner's vehicle back to the business, sarcastically asking the employee not to put the owner's vehicle in the ditch. When the truck was towed from the ditch and brought back to the shop, the employee cleaned off the mud "off the clock."

Thereafter, even though the employee explained that the ditch incident was not intentional, the owner criticized the employee for her "lack of remorse" over the incident and repeatedly told the employee how much she "cost" the business, mentioning a $1,200 amount. Although these comments upset the employee, she never told the owner because she was afraid that the owner would react by "hollering."

In June 2005, the owner informed the employee that the employee should not drive the employer's vehicles allegedly because she drove too fast. The employee asked how that conclusion was reached when neither the owner nor her husband rode with the employee. No explanation was given other than the employee was good at warehouse management. Thereafter, the employee was expected to drive, and did drive, the employer's vehicles.

In the last year of the employee's work for the employer, the owner belittled and intimidated the employee. The employee's hours were also cut on two occasions with the owner citing the employee's inability to "handle" full-time work. In particular, the owner accused the employee of throwing items and talking too loud.

On Tuesday, July 11, 2006, neither the employee nor the other worker at the business had the keys for the employer's long haul truck which was needed for a run that day. The employee telephoned the owner to ask about the keys or if she wished the employer's smaller van, for which the employee had the keys, to be used for the run. The owner hung up on the employee and appeared at the employer's business, screaming at the employee that she should not "bitch" or "complain" as she was in management and the owner did not need to hear such complaints given the work the owner was doing moving the business to a new location. At approximately the same time, the employee was looking for rags and asked the owner their location. The owner directed the employee to take the van to the owner's home to retrieve the rags. The owner continued to complain about the employee's "bitching." The owner also asked the employee whether another worker would ever speak to the boss, the owner, in the manner in which the employee allegedly did. The employee responded, "Aye, Aye, Captain." The owner considered this an insubordinate response and so commented. The employee declined further comment, believing that the owner was venting her frustration and stress by "lashing out" at the employee.

On July 12, 2006, after arriving at work, the employee slipped on the floor. Based upon a prior incident regarding documentation and work injuries, the employee typed a statement regarding the slip. She supplied the statement to the employer in case future medical treatment was necessary.

At the end of the workday on Wednesday, July 12, 2006, the owner informed the employee that due to her prior behavior, her hours would be cut, disciplinary action was being taken and the employee was not to work on Thursday, July 13, 2006. The employee was expected to work and worked on Friday, July 14, 2006.

The next week, on Thursday, July 20, 2006, the owner directed the employee to leave work at 11:30 a.m. because she was at 33.50 hours and the employer did not wish her to incur more hours that week.

On Monday, July 24, 2006, the employee provided the employer with a letter of resignation to be effective the end of the pay period, Monday, July 31, 2006 (week 31). The owner directed the employee to "Get out now" and to return to collect her things, "When nobody is around."  (1)

Wis. Stat. § 108.04(7)(a) denies unemployment insurance benefits to a worker who voluntarily terminates his or her employment unless the quitting falls within one of the exceptions set forth in the statutes; thus, the issue to be decided is whether the employee's quitting fell within a statutory exception to allow for the immediate payment of unemployment insurance benefits.

The owner contended that the employee's quitting was not within any exception to allow for the immediate payment of benefits. In particular, the owner denied yelling at the employee. Instead, the owner argued that the employee was overly sensitive to criticism and was disgruntled. The employee denied this, arguing that the owner treated the employee so unreasonably as to justify the quitting. Specifically, the employee argued that the owner repeatedly criticized and intimidated the employee; the owner also threatened to and did cut the employee's hours of work. The employer's contention cannot be sustained.

The most relevant statutory exception is Wis. Stat. § 108.04(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). While it is a general principle that before a quitting will be found to be with good cause attributable to an employer the employee should give the employer opportunity to correct the matters complained of, this principle is inapplicable when to do so would be futile. Denning v. Northwoods Family Eyecare LLC, UI Dec. Hearing No. 02201829EC, (LIRC April 30, 2003). Additionally, a unilateral change in the conditions of employment on the part of the employer resulting in a significant pay reduction has been found to constitute good cause attributable for quitting. Farmers Mill of Athens, Inc. v. ILHR Dept., 97 Wis.2d 576 (Ct. App. 1980).

Following a careful review of the record in this matter, the commission credits the employee's testimony regarding the owner's treatment of her. While the employee did not explicitly complain about the treatment, the owner admitted that she was aware that the employee was dissatisfied with the owner's treatment. The commission finds that the owner's frequent critical, sarcastic and intimidating behavior when combined with the admitted reduction in hours and pay, constituted good cause attributable for the employee's quitting.

The commission therefore finds, that in week 31 of 2006, the employee terminated her 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 31 of 2006, if otherwise qualified.

Dated and mailed June 14, 2007
meyerja . urr : 150 : 9  VL 1005.01  VL 1080.20

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission consulted with the administrative law judge prior to reversal of the appeal tribunal decision. The administrative law judge explained that the case presented a difficult credibility issue. In terms of demeanor, he cited the owner's attitude of exasperation as supporting his conclusion that she was surprised by the employee's allegations. He further explained that the employee's demeanor reflected a "literal" or "regimented" personality, crediting her testimony that she would not question authority. He further added that both the employee and owner had difficulty recalling the dates of certain events. The commission reverses the administrative law judge based upon its conclusion that any exasperation on the owner's behalf was due to her discounting of the employee's concerns. In her testimony, the owner was similarly dismissive in her initial denial of any profanity on July 11, 2006 but, then, she conceded that she told the employee to "stop bitching." The commission therefore credits the employee's testimony, agreeing that the employee tolerated much of the owner's poor behavior based upon her inclination not to challenge those in authority.

As a final note, while the employee's petition challenged the failure to appear decision issued on January 29, 2007, that decision was not appealed and became final on February 20, 2007.

cc:
Fun Things Toy Service



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Footnotes:

(1)( Back ) For purposes of this decision, the week of issue is week 31 of 2006, the effective week of the employee's voluntary termination. Departmental records reflect that, although the employee was initially eligible for benefits in week 30 of 2006 based upon the employer's actions of suspending the employee during the notice period, the employee did not actually receive any benefits in week 30 of 2006 due to a vacation payout by the employer.