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


KEVIN R BROTEN, Employe

J R ELECTRIC INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99201595NR


On November 18, 1999, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing for immediate eligibility for unemployment insurance. The employe filed a timely request for hearing on the adverse determination, and hearing was held on December 20, 1999 in New Richmond, Wisconsin before a department administrative law judge. On December 22, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe 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 employe in this case worked approximately three months as an electrician for the employer, an electrical contractor. The employment ended on October 20, 1999 (week 43), and the issue is whether the separation was a quit or a discharge. Based upon the employe's unrebutted testimony at the hearing in this case, the commission concludes that the separation was a discharge, not for misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The issue precipitating the separation from employment was the employer's failure to pay overtime pay to the employe for work performed outside of regularly scheduled working hours.

The collective bargaining agreement between the association of electrical contractors and the employe's union states, on page 8, that all work performed outside of the regularly scheduled working hours Monday through midnight Saturday [7 a.m. to 5:30 p.m.] "shall be paid for at one and one half (1-1/2) times the straight time rate of pay." One of the projects the employe worked on, was a school and school was in session during the time period in question. This necessitated work being done after 5:30 p.m. on many occasions. These occasions included September 7, 18, 21-22, 25, and 27-30, and also October 1, 4-6, 11-13, and 17-20. On several occasions the employe asked his supervisor, the husband of the employer's owner, if he would be receiving his overtime pay for hours outside the regular shift. The supervisor told the employe that if he was going to "act like that," in other words to insist upon the overtime pay the contract required the employer to give him, then he (the employe) might as well go back to the hall, referring to the union hiring hall. That is what the employe did; he simply returned to the hiring hall.

The first issue is to decide whether this separation was a quit by the employe or a discharge by the employer. The administrative law judge, in finding a quit, reasoned that the employe could have continued working and filed a grievance through the union. It is true that the employe could have filed a grievance over the pay, but that does not change the fact that the employer essentially told the employe that if he were going to insist upon proper pay he could go back to the hiring hall. In other words, the employer directed the employe to return to the hiring hall, i.e., to not work for the employer any longer, if the employe were going to pursue his claim for overtime pay. This makes the separation at the initiative of the employer and not of the employe, and so it is a discharge by the employer and not a quit by the employe. (1) Finally, there is no indication in the record that the employe committed misconduct such as would disqualify him from unemployment insurance eligibility.

The commission therefore finds that, in week 43 of 1999, the employe was discharged from his employment with the employer, but not for misconduct for unemployment insurance purposes, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance if he is otherwise qualified.

Dated and mailed February 24, 2000
broteke.urr : 105 : 6  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission does not disagree with the administrative law judge's credibility assessment in the case. Indeed, the administrative law judge stated that the employe had a legitimate claim for the overtime pay he sought. The commission's disagreement with the administrative law judge is a legal one; the commission views as a discharge the factual circumstances the administrative law judge viewed as a quit.

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that the employe quit in this case. The employe testified On 10/20/99, I quit after working an entire shift. I gave notice to Rick. I told him I was quitting because he refused to pay me overtime. I talked to him about this on a number of occasions, the last being 10/20. I initiated the conversation. I asked him if he was going to pay me overtime for the hours I had worked. He said that I might as well go back to the hall if I was going to act like that."

The employe did not believe he was fired. The employe could have filed a wage complaint to resolve the issue. The employe argued that he was entitled to time and half for all the hours he highlighted in yellow on Exhibit 1. The contract under 3.05(B) says that "The second shift (swing shift) shall be worked between the hours of 4:30 p.m. and 12:30 a.m. Workmen on the `swing shift' shall receive eight (8) hours pay at the regular hourly rate plus ten percent (10%) for 7 « hours of work." 3.05 Section (G) "There shall be no requirement for a day shift when either second or third shift is worked." I believe that the contract was ambiguous as to whether 40 hours of work would be paid at time and a half if the work were second shift. The employe was really claiming time and a half based on the arrangement of the hours rather than the quantity of hours worked.

The employe also testified "On my last day, Rick and I got into an argument. I got tired of him hollering at me for no reason. That was part of the reason I quit. Not being paid overtime was another part of the reason I quit."

The employe could have filed a grievance with the union to enforce the contract but he did not. He finally filed a wage claim in early December 1999. The employe had other alternatives to quitting to settle his dispute on the wages.

For these reasons, I would agree with the administrative law judge and find that the employe quit not within any exception that would allow for the immediate payment of unemployment benefits.


__________________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissent argues that the employe did not believe he was fired. This is true, but it is not the parties who determine what law applies to their factual circumstances; it is the commission. The dissent also asserts that the employe had the alternative of filing a wage complaint to resolve the issue. This begs the questions, however, since the employer told the employe that he could return to the hiring hall if he were going to pursue his claim for wages. Such a complaint therefore would not have resolved the issue since, by the employer's ultimatum, the employe would be out of work if he did so. Finally, the dissent asserts that the contract was ambiguous, implying that the employe might not have been entitled to the overtime pay he was seeking. The employer did not discharge the employe for seeking overtime pay he was not entitled to, however; rather, the employer discharged the employe for seeking it at all.