BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

RENEE E. THIMM, Employee

Involving the account of

PIEPER ELECTRIC, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-607722


On October 25th, 1989, the Department of Industry, Labor and Human Relations (hereafter, Department) issued an Initial Determination which held that the employe quit with good cause attributable to her employer pursuant to section 108.04(7)(b) of the Statutes. The employer timely appealed. A hearing was held on this matter on January 16th, 1990 before an Administrative Law Judge. On January 25th, 1990, the Administrative Law Judge issued his Appeal Tribunal Decision affirming the Department's Initial Determination and finding the employe eligible for benefits if otherwise qualified.

The employer timely petitioned the Commission for review of the Appeal Tribunal Decision. Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately 26 months as an inside journeyman wireman for the employer, an operator of an electrical contracting business. Her last day of work was February 13th, 1989 and she terminated her employment on February 14th, 1989.

The issue upon review is whether the employe terminated her employment and if so, whether the employe's quitting was for a reason which would allow payment of benefits, pursuant to section 108.04(7) of the Statutes.

At the time of the employe' s hire, she worked first shift in a power plant and then on a hotel project. Approximately in June, 1988 the employer assigned the employe to work on a Milwaukee Pubic School District contract which required work to be performed on second shift at schools throughout the entire city of Milwaukee. The employe worked approximately 60 different assignments on second shift at various schools. However, the employe objected to working in areas she deemed '"high crime" locations.

In December of 1988 or January of 1989, the employe was assigned to work in an area which she deemed to be a "high crime area"  located at 25th and Wright. The employe was scheduled to work from 3 p.m. to 11 p.m. . When the employee arrived at the school the parking lot was full so she had to park a block away. At approximately 10:30 p.m. the two other individuals that she was working with had reached their quota and left the school. The employe had not reached her quota and was required to work until 11 p.m. even though before the shift, her employer guaranteed the employe that she would not be left alone that evening. The employe walked alone to her car after completing her shift, arriving safely.

In January 1989, the employe was assigned to work second shift at Burrows Junior High School in an area that the employe did not consider to be a "high crime area". Nevertheless, vandals stole the employe's radio and threw two scaffolds down the stairs. The employe also worked at an assignment at Washington High School, an area that the employe considered to be a "high crime area" where one of her co-workers had his car stolen off the school parking lot.

On February 13th, 1989 the employer informed the employe that her next assignment would be located on 27th and Nash, an area that the employe deemed to be a "high crime area." The employe objected to the assignment and requested a first shift assignment. On February 14th, 1989 the employe telephoned her direct supervisor and informed him that she wou1d not be working at the school assignment located on 27th and Nash and requested a first shift assignment. The employer's supervisor informed the employe that first shift work was not available and that the only assignment available to the employe was the 27th and Nash site. The employe informed the employer that she would not be working at that school site to which the employer responded that, if the employe was quitting, she should bring her tools in. The employe did bring her tools back to the employer, thereby severing the employment relationship.

A quit or voluntary termination is found when an employe shows that he or she intends to leave his or her employment and indicates such intention by word or manner of action, or by conduct, inconsistent with the contention of the employment relationship. Here, the employe indicated her intent to quit when he refused to work the 27th and Nash assignment after being told nothing else was available and by returning her tools. These actions severed the employment relationship and allow the Commission to conclude that the employe quit her employment.

Concluding that the employe terminated her work with the employer, the next level of' inquiry is whether the employe terminated her employment with good cause attributable to the employer, pursuant to section 108.04(7)(b) of the Statutes. Courts have held that good cause for quitting must be based upon some fault on the part of the employer and that the employe's reasons for quitting must be real and substantial; that is, the employe's decision to quit must have been reasonable under the given circumstances. See Kessler v. Industrial Commission, 27 Wis. 2d 398 (1965). Here, the employe failed to establish any act or omission on the part of the employer that would constitute fault. Although the employer failed to ensure the presence of co-workers at the 26th and Wright site, the employe never attempted to move her car onto the parking lot after it was emptied to ensure a safer walk that evening. Additionally, school district policy requires one of its employes to be present in all schools whenever contractors are working. The employe never attempted to locate a school district employe that evening.

While the employe's perceptions of Milwaukee's "high crime areas" may be real to her, the employee never substantiated, at the hearing, whether or which areas in the city could be classified or categorized as "high crime areas". In addition, the employe's refusal to work in areas that she deemed to be high crime obligated the employer to provide extra accommodations that it ordinarily did not provide to its other employes. Without further substantiation that such extra accommodations were required the employe's decision to quit was unreasonable.

Moreover, the employe never attempted to secure a promise or guarantee from the employer that she would not have to work alone at the 27th and Nash site. Instead, the employe concluded that the location was a high crime area and when the employer had no other work available she refused to accept the assignment. Perhaps, if the employer had guaranteed the presence of others at the 27th and Nash site and breached its promise, the employer's conduct may have constituted fault. Here, the employee never provided the employer with a chance to reasonably provided for her safety concerns because she quit before attempting to secure such a promise. Although the Commission obviously does not require the employe to become a victim before finding fault on the part of the employer, given the circumstances and the nature of the contract, the employe's assignments were not unreasonable or unfair. Without some finding of fault on the part of the emp1oyer, the Commission will not determine that the employe had good cause attributable to the employer to quit.

Therefore, the Commission finds that in week 7 of 1989, the employe terminated her employment but not for good cause attributable to the employer within the meaning of section 108.04(7)(b) of the Statutes or within any other statutory exception that would allow payment of benefits.

The Commission further finds that the employe was paid benefits in the amount of $200 for week 40 of 1998, for which she is not eligible and to which she is not entitled, within the meaning of section 108.03 (1) of the Statutes and pursuant to section 10.22(8)(a) of the Statutes she is required to repay such sum to the Unemployment Reserve Fund.


DECISION

The decision of the Appeal Tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 7 of 1989, and until seven weeks have elapsed since the end of the week of quitting, and she has earned wages in covered employment performed after the week of quitting equaling at least 14 times her weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $200 to the Unemployment Reserve Fund.

Dated and mailed December 7, 1990
135 : CD0677 VL 1080.22

/s/ Kevin C. Potter, Chairman

 Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


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