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

RANDOLPH L MILLER, Employe

MARINETTE MARINE CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401087AP

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, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 14 of 1999, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred

Dated and mailed January 31, 2000
millera.usd : 145 : 7  MC 687  MC 698

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the employe asserts that the employer's requirement that he shave his beard infringed upon his First Amendment rights. However, the commission disagrees. The commission has held that the failure to abide by a reasonable rule will be considered misconduct connected to the employe's work. See Parpart v. LIRC and Wisconsin Physicians Ins. Corp., No. 88 CV-5864 (Wis. Cir. Ct. Dane County July 26, 1989).

In Consolidated Const. Co., Inc .v Casey, 71 Wis. 2d 811, 238 N.W.2d 758 (1976), the employe refused to shave his beard, in spite of the employer's rule. The employer contended that the rule was for safety reasons, and that the employe's beard was hazardous, for example, it might ignite. The employe also had long hair, which was in violation of the employer's rules. The court found that a grooming rule which was imposed for safety reasons would have been reasonable, and remanded the case for a determination as to whether an alternative existed and whether the employe's beard was truly hazardous. In the present case, the employe was to wear a respirator and this was particularly important because he was prone to respiratory infections. To wear a respirator a person must be clean-shaven. There was no evidence to suggest that the employe was unable to wear a respirator for medical reasons, or that there was any alternative to shaving which would enable him to wear a respirator. In the present case, the employe was not discharged, but rather quit, and therefore, the employe must demonstrate that his quitting was with good cause attributable to the employer or for some other reason which would allow immediate benefit payment. Because the employer's rule was reasonable, the employe's decision that he would not comply did not amount to good cause attributable to the employer for quitting his employment. With regard to Wis. Stat. § 103.14, the employe's use of a respirator was a safety issue, the commission does not consider it to be a grooming requirement.

cc: ATTORNEY JAMES CONNELL
CROOKS LOW CONNELL & ROTTIER

ATTORNEY RONALD T PFEIFER
GODFREY & KAHN SC

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