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


RANDAL L ARNDT, Employee

K & D TRANSPORTATION SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00401816AP


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately eighteen months as a truck driver for the employer, a transportation business. The employee was paid 26 cents per mile and his last day of work was May 5, 2000 (week 19).

When the employee was hired, the employer's president informed the employee that he might occasionally work on Saturday mornings or, if he did not work on a Saturday morning he might be expected to work on an occasional Sunday evening. During the employee's employment, he worked approximately ten Saturdays, two of which occurred in the last five months of his employment. Additionally, the employee sometimes was paid for "wait time" if the employer's customer paid the employer for such wait time. The employer never kept any "wait time" money without reimbursing the employee for his "wait time."

Sometime in February of 2000, the employer began to experience cash flow problems. On three separate occasions, prior to his quitting, the employee was informed by his bank that the employer had insufficient funds to cover the employee's payroll checks. The employer explained that its cash flow problems were the result of out-of-state customers who paid the employer by check and unexpected higher fuel prices. When the employee notified the employer of the payroll problem, the president offered to pay for any fees the employee was charged as a result of the payroll checks bouncing. To avoid future payroll checks from bouncing, the employer began cashing the employee's payroll checks itself at the employer's bank. During this same time period, the employer's other workers cashed their checks directly at the employer's bank location and never experienced problems with insufficient funds. The employee's last payroll check, issued approximately two weeks after the employee quit, also bounced.

On Saturday, April 28, 2000 (week 18), the employee notified the employer's president of his quitting, effective May 5, 2000 because his work schedule was not meeting his family needs. The employee complained he did not have a family life and that he was out on the road all of the time. Another factor considered by the employee included problems he experienced with his payroll checks.

Generally, an employee who voluntarily terminates his or her employment is ineligible for unemployment insurance until he or she meets the requalification requirements of Wis. Stat. § 108.04(7)(a). An exception found at Wis. Stat. § 108.04(7)(b), allows immediate unemployment insurance eligibility for claimants who quit their employment with good cause attributable to the employer. "Good cause" for quitting requires a real, substantial and unreasonable act or acts by the employer. Worachek v. Koch Brothers, Inc., Circuit Court Case No. 104-461, June 2, 1961.  It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965). It must be a reason which would justify an employee in becoming unemployed rather than in continuing working. Hur v. Radio Shack Tandy Corporation, Dane County Circuit Court Case No. 153-082, June 6, 1977. The commission is satisfied that the employer's conduct in regard to the employee's payroll checks meets this standard.

In similar type cases, the commission has held that a pattern by an employer of issuing checks for which there are insufficient funds establishes good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b). See Bonnie L. Gaworski v. William H. Myers, (LIRC 2/17/99); Harycki v. Wiedmeyer Service Center, Inc., (LIRC 8/26/91). Thus, even though the employer may not have intended to issue payroll checks without sufficient funds, the fact remains that the employer did on three separate occasions thereby establishing a pattern. Additionally, while the fourth bounced check occurred after the employee quit, it still supports a pattern. Therefore the employer's conduct in this regard was blameworthy and inappropriate, sufficient to support a reversal of the appeal tribunal decision.

The commission therefore finds that in week 19 of 2000, the employee voluntarily terminated his employment 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 benefits beginning in week 19, 2000, if he is otherwise qualified.

Dated and mailed October 5, 2000
arndtra.urr : 135 : 1  VL 1059.07

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission does not disagree with any credibility assessment made by the ALJ. The ALJ considered the bounced payroll checks insufficient to support a finding under Wis. Stat. § 108.04(7)(b). The commission however is satisfied that three bounced payroll checks during the employee's tenure with the employer provided him with good cause attributable to the employer for quitting and reverses the ATD as a matter of law.

 

PAMELA I. ANDERSON, COMMISSION (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe the employee quit because as he testified "I told Mr. Hansen this was not working out. I said I don't have a family life. I said I'm out on the road all the time. I said I could have stayed with another company I had more benefits with. I said how much notice do you want. He said whatever you want so I gave him one week and he agreed to that." The employee also testified "In regard to whether there was a last straw that made me quit when I did, another check bounced and I was not getting home enough.My last paycheck for $539.14 bounced on 5/16/00. That was my gross for 1 week. It bounced after I quit."

The other three checks that bounced were February 22, 2000, March 6, 2000, and March 28, 2000. The employee gave notice of his quit around April 28 or 29 and a last day of work of May 5, 2000. The last bounced check was after the employee's quit so that could not have been a reason for his quit. The employer had resolved the bouncing check problem if the employee would cash his checks at the employer bank. If the employee had quit after the March 28, 2000 bounced check, I'd be more inclined to believe him. I believe that the employee quit because he believed he had no family life because he was on the road a lot. He had lots of concerns unrelated to the bounced checks that caused him to quit. If I had believed he quit because of the bounced checks, I would have agreed with the majority.

For these reasons, I would agree with the administrative law judge and affirm her decision.


______________________________________
Pamela I. Anderson, Commissioner


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