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


JO ANNE GAUTHIER, Employe

MENOMINEE GAS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400908AP


On April 10, 1999, the Department of Workforce Development issued an initial determination which held that the employe quit her work with good cause attributable to the employer. The employer filed a timely request for hearing on the adverse determination, and hearing was held on May 10, 1999, in Appleton, Wisconsin before a department administrative law judge. On May 11, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for commission review of the adverse decision and, by September 20, 1999 order, the commission remanded the matter for additional hearing. That hearing was held on November 4, 1999 in Appleton, Wisconsin; the matter is now again before the commission, and ready for disposition.

Based upon the applicable law and the records and the other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately fifteen months as a route driver for the employer, a propane gas delivery business. She gave her employer notice on Monday, January 11, 1999 that she would be quitting her employment in two weeks, beginning in week 5 of 1999. Her employer informed her that it no longer needed her services after Friday, January 15, (the end of week 3 of 1999).

In May of 1998, the employer instituted a new computer program to handle payroll. The program apparently entered the employe's exemptions as "0," and so she began receiving less money than she was entitled to when claiming the appropriate number of exemptions. When the employe complained, the employer investigated the matter, and the erroneous exemption number was changed. The computer program also erroneously paid the employe overtime after 37.75 rather than after 40.00 hours for "a couple of weeks," and the employe was told that she would be required to repay the overtime premium of 2.25 hours each week improperly paid due to the computer error. The employer does not provide sick leave benefits. When the employe was hospitalized in the summer of 1998, she was told that the employer would give her an advance on her salary, and pay her for the time off work. She agreed to repay this advance by working overtime in the fall of 1998.

Beginning in September, 1998, the employe began complaining that her overtime hours, used to repay the employer's advance, were being improperly computed. She had four meetings with the manager in an attempt to reconcile their differences. In November, 1998, the employer provided her with computerized transaction detail, to support its calculations. The employe repeatedly asked for copies of her time cards, which were not provided to her until after she quit her employment.

The employe believed she was being denied overtime as a result of her complaints. On one occasion in December of 1998, the employer's officer manager telephoned the employe and offered her an overtime assignment. The office manager indicated that the manager was going to allow the employe to take that call even though the overtime matter had not been cleared up. The employe then asked whether she would get copies of her time cards. At that point, the office manager told the employe to forget it and hung up. (1)

On December 31, the employe was making a propane delivery to a customer's home. She smelled gas, and inspected the customer's line for leaks. She repaired some of the leaks she found, but was unable to complete the repairs. She called the office manager, who consulted with the mechanic on duty. She was told to turn the customer's gas off, and tell the customer a mechanic would be dispatched immediately. Later in the day, the employe heard a radio transmission while filling her truck's gas tanks. She could tell from the manager's voice that he was quite upset upon learning that the customer had called complaining that she had been without gas for some time, and the line had not been serviced. When the manger arrived in the yard, he approached the employe with clenched fists, and said, "Why did you turn the tank off?" The employe responded that the mechanic had told her to do so. The manager then asked, "Why weren't you carrying regulators to repair the leaks?" The employe responded that she understood him to have instructed drivers on an earlier occasion not to carry regulators. The manager then turned away from the employe, muttering obscenities under his breath. The employe testified that she was "shaking" after this confrontation. (2)

On January 11, the employe gave the employer notice that she would be quitting her employment effective January 22. The employe was doing so because of the employer's alleged miscalculation of overtime hours, the employer's refusal to give the employe a copy of her time cards, and the manager's confrontation with the employe on December 31.

The initial issue to be decided is the employe's status between January 15, 1999 (the end of week 3), when she last performed work for this employer, and the proposed effective date of her quitting on January 22, 1999 (the end of week 4).

When an employe specifies an intended date of quitting but that date is "accelerated" by the employer, so that the employe is separated from his or her work prior to the intended date, the employe is found to have been laid off by the employer on the earlier date and eligible for unemployment insurance, if otherwise qualified. Simpson v. Noffke Lumber, Inc., Hearing No. 96401494AP (LIRC 10-22-96). In this case, the employe gave a two-week notice, but was not allowed to work at all in week 4 of 1999. Consequently, her employment was suspended by the employer in week 4 of 1999.

The second issue to be decided is whether the suspension of the employe's employment during week 4 of 1999 was a disciplinary action for good cause connected with the employment. Section 108.04(6) of the Wisconsin statutes provides as follows:

DISCIPLINARY SUPSENSION. An employe whose work is suspended by an employing unit for good cause connected with the employe's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. . . . This subsection does not preclude an employe from establishing a benefit year during a period in which the employe is ineligible to receive benefits under this subsection if the employe qualifies to establish a benefit year under s. 108.06(2)(a).

The manager testified at the hearing that the only reason he did not allow the employe to work out her notice period in week 4 of 1999 was so that he could "bring a part-time person aboard on a full-time basis" to replace the employe. Under these facts, it was not established that the employe's disciplinary suspension in week 4 of 1999 was for good cause.

The third issue to be decided is whether the employe's quitting beginning in week 5 of 1999 was for any reason that would permit the immediate payment of unemployment benefits. The commission concludes that the employe's quit was with good cause attributable to the employer, and so reverses the appeal tribunal decision.

The employe believed the employer had improperly calculated the employe's overtime hours. The record from the hearings does not establish this assertion, but it leads directly to the employe's next complaint: the employer's continuing refusal to give the employe a copy of her time cards. This refusal by itself is a violation of Wis. Stat. § 103.13(2), which requires employers to permit employes to inspect any personnel documents relating to additional compensation (overtime).

The office manager's withdrawal of the offer of overtime work in December of 1998 also contributes to the good cause finding. Essentially, the office manager withdrew the offer of work because the employe asked about getting a copy of her time cards. This in itself was a discriminatory act under Wis. Stat. § 111.322(2m), by operation of Wis. Stat. § 103.13(7m). (3)

The manager's confrontation with the employe on December 31 also contributes to the finding of good cause for the employe's quit. It should go without saying how inappropriate it is for a manager, unprovoked, to approach a subordinate employe in a state of anger and with clenched fists.

The commission therefore finds that, in week 5 of 1999, the employe voluntarily terminated her employment and that she did so 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 employe is eligible for unemployment insurance as of week 4 of 1999, if she is otherwise qualified.

Dated and mailed February 3, 2000
gauthjo.urr : 105 : 6  MC 627 MC 676  VL 1080.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Note: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge initially had found credible the manager's denial of the employe's assertions regarding the December 31 confrontation. Testimony from the remand hearing supported the employe's claims regarding that incident, however. In addition, the manager's characterization of a battery he committed against another woman as only "hitting her once" grossly understates the severity of the manager's battery (as reflected in police reports on the incident). For these reasons, the commission cannot credit the manager's version of the December 31 incident over that of the employe.

 

Pamela I. Anderson, Commissioner, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I found that the testimony of the office manager to be the most credible. The administrative law judge did not have the office manager's testimony when she found that the employe had asked repeatedly for her time cards. The office manager testified that "The employe did not contact me about inaccuracies in her time card. Towards the end, after the employe asked Arnold Chevalier outside the office, she asked to see her time cards. The employe called a couple of times and asked that Arnold Chevalier come over and look at her furnace. When he returned to the office, he said it was not about his furnace, but about her time. I got the time records together for her to review. The employe never told me I had not properly paid her, based on the time records."

I found that the employe exaggerated her story. A good example of it as at the remand where the employe testified about seeing Arnold Chevalier's vehicle near her place about one hour before the first hearing. The vehicle was near the tribal office where the employer's brother is chairman. She did not see the employer and was not sure how long the vehicle was there. Someone else could have been driving the service truck. The employer's testimony was taken from New London and by the employe's testimony it takes 75 to 90 minutes to go from Keshena to New London.

The employe agreed she had been offered overtime work but had been in the shower. The office manager testified "In the fall and winter of 1998, I contacted the employe 5-6 times to do after hours calls. She did not take any of them. The last time I called her about an after hours calls, she said she would no longer do overtime." On this record, I do not believe that the employer refused to give her after hours calls because she complained about her pay records.

I did not believe the employe was credible when she talked about quitting because she was afraid of the employer. At the first hearing the employe testified "I said Merry Christmas" and "Happy New Year" to Mr. Chevalier, but he only scowled at me. There was no greetings or anything pleasant left in our relationship." While the employe was aware of the employer beating the mother of his child shortly after it occurred in September, if we believe her, she had no fear of working for the employer until December 31. I am unconvinced that she was afraid of him. She adds additional reasons at the second hearing relating to general employment safety that she did not mention before.

In general, I would agree with the administrative law judge decision but I would modify the findings to believe the office manager in the case of any conflict because she did not testify at the first hearing. I would affirm that modified decision.

_____________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY MICHAEL G TREWIN
P O BOX 70
NEW LONDON WI 54961

ATTORNEY ANDREW WAGENER
111 PARK ST
P O BOX 265
NEW LONDON WI 54961-0265


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Footnotes:

(1)( Back ) The dissent asserts that the office manager's testimony was the most credible, and recites the office manager's testimony to the effect that, the last time she contacted the employe, the employe said she would no longer do overtime. The dissent omits the remainder of the office manager's testimony regarding the matter, which was: "She first said that she had company, then said `something to the effect of the overtime, was she going to be getting . . . , be able to do overtime now'." This testimony, when taken in its entirety is not credible. It is simply ridiculous to assert that the employe would have stated that she would no longer take overtime calls, and then virtually immediately ask whether she was going to be able to take overtime calls. For this reason, the commission cannot accept this portion of the office manager's testimony. If the dissent beliefs the office manager's testimony was credible, then the dissent ought to have explained the office manager's concession that she "may have" told the employe to "forget it" (with regard to an overtime assignment the office manager had telephoned the employe about).

(2)( Back ) The dissent is unconvinced that the employe was afraid of the manager, since she knew as of October of the manager's battery against a third individual. There is no indication in the record, though, that the manager had directed such antagonism toward the employe prior to December 31. There is nothing unusual in the employe's lack of fear of the manager prior to the time the manger directed his aggression at the employe.

(3)( Back ) 103.13 Records open to employe.

(2) OPEN RECORDS. Every employer shall, upon the request of an employe, which the employer may require the employe to make in writing, permit the employe to inspect any personnel documents which are used or which have been used in determining that employe's qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records, except as provided in subs. (5) and (6). An employe may request all or any part of his or her records, except as provided in sub. (6).

(7m) EMPLOYMENT DISCRIMINATION. Section 111.322(2m) applies to discharge and other discriminatory acts in connection with any proceeding under this section.

111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:

(2m) To discharge or otherwise discriminate against any individual because of any of the following: (a) The individual files a complaint or attempts to enforce any right under s. 103.02, 103.10, 103.13, 103.28, 103.32, 103.455, 103.50, 104.12, 109.03, 109.07 or 109.075 or ss. 101.58 to 101.599 or 103.64 to 103.82.