Wis.LIRC UC Decision: Lacoy, Sondra - August 23, 2007 - VL 1005.01 - Cause attributable to Employer - employee demoted, reduced in pay, forced to sign critical and inaccurate statement after arrest for off-the-job DUI - employer's inappropriate, excessive and coercive treatment of employee so out of proportion to employee's offense as to be real and substantial fault, good cause to quit

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

SONDRA D LACOY, Employee

TRANSPORTATION SECURITY , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07400979AP

On April 4, 2007, the Department of Workforce Development issued an initial determination which held that the employee quit her employment but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on May 8, 2007 in Appleton Wisconsin before a department administrative law judge. On May 14, 2007, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked a little over two years as a lead transportation security officer for the employer, the Transportation Security Administration. She quit her employment on December 20, 2006 (week 51), when faced with the requirement that she sign a certain statement prepared by the employer, and the issue is whether her quit was with good cause attributable to the employer. The commission concludes that it was, and so reverses the appeal tribunal decision.

On December 9, 2006, the employee was cited for driving under the influence. Pursuant to the employer's rules, she notified the employer of the matter. On December 20, 2006, the employer convened a meeting with the employee, attended also by three management personnel. The employer had prepared a document for the employee to sign indicating inter alia that the employee had a total disregard for the law and was a threat to national security. The document also stated that the employee was to receive a demotion and a $4 per hour reduction in pay. The employee was not allowed to speak at the meeting. She was not allowed to contact an attorney or her union representative. She was told she would not be allowed to leave the room until she signed the document. The employee refused to sign the document, and quit her employment instead.

Generally, one who quits employment is ineligible for unemployment insurance until he or she meets the general requalification requirements of Wis. Stat. § 108.04(7)(a). An exception allowing for immediate eligibility for unemployment insurance is Wis. Stat. § 108.04(7)(b), quit with good cause attributable to the employer. For a quit to come within that exception, it must be occasioned by some act or omission by the employer constituting a cause which justifies the quitting. It must involve some fault on the employer's part and must be real and substantial. Gessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965). The employer's treatment of the employee meets this standard. First, it does not follow from the employee's having received a citation for driving under the influence that she was a threat to national security. The employer therefore was requiring that the employee sign a statement that was simply false. Second, the employer's tactics in the December 20, 2006 meeting were inappropriate, excessive and, indeed, coercive. This treatment of the employee by the employer was so out of proportion to the employee's offense as to constitute the real and substantial fault contemplated in Gessler. The record does not indicate, finally, that the employee had a reasonable alternative she could have pursued in lieu of quitting the employment. The administrative law judge, in finding no good cause for the employee's quit, opined that the employee could have asked that disciplinary action taken against her as a result of the DUI be expunged from her employment record. An employee is not required to exhaust all alternatives to quitting before doing so, however, but rather only reasonable ones. Given the tenor of the employer's treatment of the employee, the possibility of the employee's getting any of the matter expunged from her employment record cannot be considered a reasonable one.

The commission therefore finds that, in week 51 of 2006, the employee terminated her work with the employer with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 51 of 2006, if she is otherwise qualified.

Dated and mailed August 23, 2007
lacoysa . urr : 105 : 8 VL 1005.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission concluded that the undisputed facts as a matter of law gave the employee good cause attributable to the employer for her quit of the employment.

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uploaded 2007/08/27