UC Decision Digest - 1991-1994 case summaries; plaintiff names D - G  

This file contains  the summaries of court decisions collected in the 1991-1994 edition of the Unemployment Compensation Decision Digest  for cases with plaintiff names beginning with D through G.

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Plaintiff names ending with D:                       (Go to: [Top of this page] - [Main UC Digest Index] )


Billy Daniels, Jr. v. LIRC, a Wisconsin State Agency, and Forest County Potawatomi Community, Inc., a Federally Recognized Indian Band, No. 91-CV-47 (Wis. Cir. Ct. Forest County July 10, 1992).

Employe, an AODA counselor for an Indian tribe, was discharged for failing to attend a number of required training sessions. Initial determination and ALJ found that he had been discharged for misconduct. Employe then argued to LIRC that his failure to attend one of the training sessions had been justified because his expenses had not been prepaid as required. He had not argued this to the ALJ, and there was no evidence of this in the record, but employe asserted that "judicial notice" should be taken of certain documents, submitted with his petition, relating to expenses for the training in question, and that he should be given an opportunity for further hearing on that basis. LIRC declined to take "judicial notice" or allow further hearing, and affirmed.

On judicial review, employe argued solely that LIRC erred in not taking "judicial notice" of the documents and in not remanding for further hearing on that basis. Employe argued that even if LIRC could not or would not take judicial notice, the court in which the judicial review action was pending could do so and could remand on that basis.

Held: Affirmed. The court cannot make an evidentiary decision in the case, but can make the determination of whether the additional evidence would have altered the decision. Court opines that an administrative hearing examiner can take notice of other documents in their discretion, but does not agree with plaintiff that it is mandatory that judicial notice must be exercised. Therefore the court will not remand the case back as a matter of law. On the question of whether taking the evidence into account would or could justify reversal of the decision earlier made, the court is satisfied that there was substantial evidence in the record for the decision that was made, and there was therefore no lack of due process and no abuse of discretion.

Arthur De Bardeleben v. LIRC and Claudia Baker, No. 91-CV-104 (Wis. Cir. Ct. Price County July 23, 1992)

The co-defendant employe worked about one and one-half years as a bookkeeper for the plaintiff attorney until she was discharged on April 21, 1991.

The employe was discharged for interfering with co-Worker's by leaving her work area to chat with the co-Worker's in their work area and for giving out what the employer considered confidential information to a former co-employe who was an attorney formerly associated with the firm. She had told the former attorney that she had prepared the check the employer sent to the former attorney but the employer had computed the amount of the check.

Benefits were allowed at all administrative levels on the ground that the employe was discharged but not for misconduct connected with her employment.

Held: Affirmed. The employe was never warned in writing or verbally by direct reference to her leaving her work area to chat with co-Worker's. She did on occasion leave her work area to obtain information from co-Worker's.

The employe received a telephone call at home from a former attorney with the firm. In addition to various personal matters the former attorney inquired how the percentages were calculated to compute a fee paid to her by a check typed by the employe. The employe explained she did not compute the amount and the former attorney would have to confer with Attorney De Bardeleben. The former attorney wrote to Attorney De Bardeleben who considered the employe had given out confidential information in violation of his rules. He went to her home and discharged her for the rule violation.

The findings of fact adopted by the commission are supported by credible and substantial evidence.

The ALJ's refusal to allow a police officer to testify was not a prejudicial error. The employe conceded that on the plaintiff's second visit to her home on the day of discharge that plaintiff was not loud and abusive. Besides, the employe had already been discharged at the time of the plaintiff's first visit. The police officer's testimony was therefor irrelevant and was not an irregularity that would have affirmatively altered the findings or decision.

There is no evidence that the employe gave the former attorney any information that was confidential or that the employe was ever warned for visiting excessively. The allowance of benefits is in accord with the policy of the U.C. law.

Jeff Declene v. LIRC, No. 92-CV-242 (Wis. Cir. Ct. Oconto County November 19, 1993).

Petitioner employe's action for judicial review failed to name his prior employer as a defendant and the pleadings served on the commission were not authenticated. As petitioner failed to comply with statutory requirements the commission moved to dismiss.

Held: Motion granted.

Irma Del Rio v. LIRC and J. J. Security, Inc., No. 89-CV-011-266 (Wis. Cir. Ct. Milwaukee County March 11, 1991) 

The employe initiated a claim for U.C. benefits in week 5 of 1989 following a layoff by her full- time employer--AA. She had worked part-time for the captioned base-period employer but had quit the part-time job about two weeks prior to being laid off by the full-time employer. A DILHR deputy issued an initial determination holding the employe quit the captioned employer in week 3 of 1989 and that benefits were suspended until she requalified by working at least seven weeks in covered employment and earned wages of at least $1,008. The employe's appeal was late.

The employe worked about two weeks for a subsequent employer--J.H.C. and then renewed her claim for benefits. The deputy issued another determination holding that as of week 10 of 1989 the employe had not satisfied the requalification requirements.

Hearings were held on the issue of whether the employe had probable good cause that her late appeal was for a reason beyond her control and whether she had requalified for benefits. The initial determination on requalification was affirmed and it was also held that the employe failed to establish probable good cause for filing the late appeal. LIRC affirmed both appeal tribunal decisions.

Held: Both commission decisions are affirmed. Because the employe could have mailed her appeal, as set forth in the determination, rather than being concerned about not getting to the local office by 4:30 p.m. via public transportation from her full-time job from 7:00 to 2:30 p.m., she did not show she had probable good cause that her failure to timely appeal was for a reason beyond her control.

The employe's quitting a part-time job was still a quitting. She did work for two weeks after quitting but she did not satisfy the requalification requirements.


Department of Workforce Development v. LIRC and Dunham Express Corp.,  2010 WI App 123, ___ Wis. 2d ___, ___ N.W.2d ___

The department appealed the commission's finding that individuals who performed courier services were independent contractors under the trucker, contract operator exception found at Wis. Stat. ? 108.02(12)(c) and Wis. Admin. Code ? DWD 105.03; specifically, the commission found that the customer-imposed requirements were not "direction and control," the right of drivers to refuse "hauls," with individual stops on a route not separate "hauls" and a determination of "routes" and "stops" with "route" referring to the series of roadways drivers use and "stops" refers to down time between locations on route.

Held:  Reversed.  In light of the Unemployment Insurance Act's stated purpose, the commission's decision was not reasonable or consistent with the purpose of the provisions of the statute and administrative code; the courier drivers were not independent contractors under the trucker, contract operator provision but were "employees" for purposes of unemployment insurance contributions.  Specifically, the court disagreed with the commission's interpretation of the meaning of "routes" and "stops" finding that the drivers did not determine the routes or stops made during a haul, that type of equipment encompasses color and logo, and the uniform, decal and requirement to lock vehicles constituted work rules and policies that drivers were to follow.

Daniel T. Devalk v. LIRC and Schok's Auto Refinishing, Inc., No. 92-CV-008300 (Wis. Cir. Ct. Milwaukee County April 22, 1993) 

The employe was employed by the employer for approximately 18 months as an auto body repairman. The employer discharged him after he took some auto body painting equipment home over the weekend without permission. The employe brought the equipment back to the shop either late Sunday evening or early Monday morning while the shop was still closed. The most significant piece of equipment the employe had taken was a brand new paint gun, which he returned covered with yellow paint. There was a factual dispute over whether in the past the employer had allowed employes to take equipment home without permission. The commission found that the employer had a standing rule against such and held the discharge was for misconduct.

Held: Affirmed. The commission's decision finding misconduct is upheld as supported by credible and substantial evidence.

DILHR v. LIRC, Sally B. Emerson and La Crosse Public School, and DILHR v. LIRC, Kathryn A. Schnitzius and La Crosse Public School, 161 Wis. 2d 231, 467, N.W.2d 545 (1991) 

Claimant Emerson worked for the employer since 1979 as a home economics teacher. During the 1987-88 school year she had worked 83 percent of full-time. She earned $19,215 for that work. She was laid off effective June 6, 1988 after having been offered, and having accepted, a long term full-time substitute position for the first semester of the 1988-89 school year at a salary of $8,893.

Claimant Schnitzius worked for the employer since 1983 as a teacher for the hearing impaired. During the 1987-88 school year she had worked 60 percent of full-time. She earned $15,162 for that work. She was laid off effective June 6, 1988 after having been offered, and having accepted a long term full-time substitute position for the first semester of the 1988-89 school year at a salary of $8,910.

A department deputy and an administrative law judge found no eligibility for benefits between the two school years on the grounds that claimants' assurance of employment met the 80 percent test established to determine whether the work offered was reasonably similar to the work performed. That determination was made on a semester-by-semester comparison. The commission reversed after making the comparison on the basis of academic years and finding an assurance of less than 80 percent since no work was offered for the 1988-89 second semester.

The circuit courts held that the general rule of giving deference to the decision of an administrative agency on a question of law does not require the court to give deference to the department in this case since to do so would undermine the reviewing authority of the commission. They also accepted the commission's application of the statute since it was consistent with the legislative intent. On appeal, the court of appeals certified the cases to the supreme court.

Held: Where deference to an agency's decision is appropriate, the courts should accord deference to the commission since the legislature created it as the final review authority over disputed department decisions. Deference to the commission is appropriate in this case and the commission's interpretation of this statute is reasonable. The word "term" is applicable to nonconventional school years and is not an optional method of addressing the question of reasonable assurance between two academic years. Under this interpretation the employes did not have reasonable assurance and are therefore eligible for benefits.

DILHR v. LIRC and Constance C. Wileman, No. 93-CV-677 (Wis. Cir. Ct. Rock County June 3, 1994) 

full text available here.

Employe, who was employed as a head cashier in a grocery, earning $12.10/hr and receiving health benefits and vacation pay, was laid off when her employer closed its store. She received eight weeks severance pay. Approximately eight weeks after she was laid off, she turned down an offer of work as a mail clerk in a factory, paying $6/hr and offering no health insurance. LID and ATD held that she was disqualified under 108.04 (8) for having turned down an offer of suitable work without good cause, since her "canvassing period" under (8)(d) had expired. LIRC reversed, holding that (8)(a) provided an independent basis for finding "good cause" apart from the canvassing period provision, and that in this case the greatly reduced pay and the dissimilarity in the positions meant that the position was not suitable for the employe and gave her good cause to turn it down. DILHR appealed.

Held: Reversed. Under sec. 108.04 (8), "good cause" may not be found under (8)(a) based on lower rate of pay and grade of skill once the "canvassing period" under (8)(d) has run.

(Reversed, DILHR v. LIRC and Wileman, 193 Wis. 2d 391 535 N.W.2d 6 (1995))

DILHR v. LIRC, The Larsen Company, Larsen Farm Services, Inc., and Larsen Factory Service, Inc., No. 92-CV-291 (Wis. Cir. Ct. Brown County August 20, 1992) (Bench decision)

In 1978, the Larsen Canning Company established two subsidiary companies which were formally determined by DILHR to be separate employing units for U.C. tax purposes. The two subsidiaries employed most of Larsen's seasonal employes, thereby sheltering the parent company from the high U.C. tax rate associated with seasonal turnover. Late in 1988, DILHR conducted an audit of the Larsen Company and its two subsidiaries, and in October 1989, issued an initial determination which determined that the two subsidiaries should never have been considered separate employers. The determination assessed 5.1 million dollars in back U.C. taxes and interest.

Larsen Company appealed and on 3/30/90, it and DILHR entered into a stipulation which was intended to settle the matter. The most significant section of the stipulation provided that the U.C. account experiences of Larsen Company and its two subsidiaries would be "combined" from January 1978 through December 1989, and that Larsen Company's U.C. tax rate beginning in 1990 and thereafter would be based on "such combined experience." DILHR implemented this language via a two-step process. First, it mathematically combined the positive and negative reserve fund balances of all three Larsen entities over the 1978-89 period, resulting in a net reserve balance of minus 1.08 million dollars. Second, it computed the dollar amount of U.C. tax write-offs available under sec. 108.16 (7)(c), Stats., which the two Larsen subsidiaries had received in the years 1987 through 1989. The figure derived from this recapture of the write- offs amounted to 3.4 million dollars and constituted an additional negative balance to be applied to Larsen Company's unemployment reserve account. Larsen Company resisted the second step of DILHR's process on the basis that such recapture of write-offs had never been contemplated.

An appeal tribunal decision issued on August 30, 1990, affirmed the terms of the stipulation, but did not deal with the controversy concerning the write-offs. LIRC held that the recapture of the write-offs was not unambiguously provided for in the stipulation, and since DILHR had drafted the stipulation, it would be construed against it. Accordingly, the additional 3.4 million dollars in write-offs could not be recaptured by DILHR.

Held: Affirmed. The stipulation was ambiguous with regard to whether the write-offs were to be recaptured. Such ambiguity should be construed against DILHR as the drafter of document.

David A. Dillman v. LIRC and Foreign Car Specialist, Inc. No. 93-CV-2238 (Wis. Cir. Ct. Dane County August 25, 1993) 

The employe appealed the commisson's finding of misconduct, timely filing the documents but copies of the summons and complaint were not delivered to the commission until one business day after the expiration of the 30-day appeal period found in sections 108.09 (7) and 102.23 (1), Stats. The employe had left the documents with Dane County Legal Notice at some unspecific time on a Friday, the last day for a timely appeal. Dane County Legal Notice did not serve the commission with them until the following Monday. The commission moved for dismissal for lack of competency to proceed.

Held: Motion granted. Wisconsin case law requires strict compliance with the statutory procedures governing judicial review of the commission's decisions. The court lacks competency to proceed.


Dor Lee, Inc. v. LIRC and Ellen M. Ceason, No. 92-CV-946 (Wis. Cir. Ct. La Crosse County June 17, 1993) 

The employe worked as a cashier and garment cleaner for the employer, a dry cleaning business. On March 2, 1992, the employer's general manager discovered what he believed to be a $10 shortage in the employer's cash box, which was a box used for making change. He suspected the employe of stealing the $10, but at least two other employes had access to the box, and there was some question as to whether the money in the box had been properly counted. The general manager did not confront the employe but allowed her to continue working until March 16, 1992, when he informed her that she was being discharged for "being involved with misuse of procedure in monies." The employer also faulted the employe for altering the amount written on a bank deposit slip. However, the employe had done this in good faith at the bank's request, because she believed the amount originally listed on the slip had been incorrect, and bank slips had previously been altered when errors were discovered. The employer also attempted to rely on alleged acts of misconduct discovered after the date of discharge. The commission affirmed the ALJ's finding of no misconduct.

Held: Affirmed. The employer failed to carry its burden of proving theft, and credible and substantial evidence supports the commission's finding that the employe acted honestly and reasonably. The court agrees with the commission that it would be improper to consider evidence of alleged misconduct which the employer was not aware of at the time of discharge.

Jeffrey J. Droessler v. LIRC and Benton Public School, No. 94-CV-037 (Wis. Cir. Ct. Lafayette County October 19, 1994)

The employe began work for the Benton School District in the 1990-1991 school year. During the 1992-1993 school year he was employed in an 85 percent position working seven of the eight school hours each day or 35 hours a week. He was paid $20,254 plus $2,110 for coaching basketball. The school year ended in June 1993.

The employe was initially offered a 62.5 percent position by the Benton School District for the 1993-1994 school year, working five of the eight school hours per day. He accepted the position. He filed a claim for unemployment benefits on June 3, 1993 (week 23) and began receiving benefits for that week. On July 13, 1993 (week 29) the employe interviewed for a job with an Illinois school located approximately 22 miles from his home. On July 15, 1993 that school offered the employe a full time position plus coaching basketball for a total salary of $20,470. He rejected that job on July 16, 1993 (week 29). The Benton School District offered the employe a 75 percent position plus coaching basketball for a total salary of $20,862.50 on August 3, 1993 (week 32). He accepted that position.

At hearing before the ALJ the employe argued that the job offer by the Illinois school was not reasonably similar because it was contrary to the protection of labor standards provisions of sec. 108.04 (9), Stats. The ALJ refused to hear testimony on the labor standards issue because it was not included in the hearing notice. Although the employe had an expert available to testify, no offer of proof was made. The commission affirmed the ALJ and concluded that the employe was not eligible for unemployment benefits beginning in week 29 of 1993 because he had a reasonable assurance of performing services in the next school year.

Held: Affirmed. The commission's decision that the employe had a reasonable assurance for the following school year is supported by its findings of fact which are supported by evidence in the record and is correct. In the absence of an offer of proof by the plaintiff, there was no issue before the commission on the protection of labor standards. The commission did not act outside or in excess of its powers nor was its decision the result of any fraud.

Markus W. Dyess v. LIRC and Schultz Sav-O Stores, Inc., No. 94-CV-1529 (Wis. Cir. Ct. Racine County December 8, 1994)

The employe began working for the employer, a retail merchandiser, in August, 1980. At the time his employment ended he was working as a retail clerk and was paid $10.35 per hour. His job included acting as a check-out person. In February 1992 the employe received a disciplinary warning for being discourteous to a customer. In January 1993 the employe received a three day suspension and a written warning for violations of various store rules. On March 24, 1993 a customer who had more than ten items and paid by check used the express lane. During check out the employe told the customer not to be surprised if he never checked her out again. The customer responded with "Excuse Me?" and the employe repeated the statement. The customer complained to the store manager the following day. The employe was subsequently suspended and discharged. The commission reversed the decision of an ALJ and concluded that the employe had been discharged for misconduct.

Held: Affirmed. The commission's findings of fact are supported by credible and substantial evidence in the record even if some documents which explain his violations are excluded because they are hearsay. A real and substantial basis exists for a conclusion of customer rudeness and written discipline in February 1992. The evidence also establishes that the three- day suspension in January 1993 resulted from rule violations and earlier customer rudeness complaints. The basic facts of the final incident are not disputed. The evidence establishes that the employe knew or should have known about the employer's emphasis on customer satisfaction. The weight of the customer's evidence regarding the employe's rudeness is for the commission. Based on the facts in the record it would be an abuse of discretion to reverse the commission's ruling.

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Eaton Corporation, Cutler Hammer Shop v. LIRC and Tony Dercola, No. 91-CV-014- 559 (Wis. Cir. Ct. Milwaukee County August 13, 1992)

The employe sustained a work-related injury to his shoulder in 1989, but after treatment he returned to his normal work duties. On June 6, 1990, he informed the employer of a reinjury to the shoulder which had occurred at work that day. The employe saw a physician who determined that he was unable to work from June 18 through August 19. During this period of time, the employer hired a private surveillance company which videotaped the employe assisting a relative in positioning a 105-pound air conditioner, carrying some plumbing repair tools, carrying his young daughter's tricycle, and pushing the daughter on a swing and teeter-totter for about one-half hour. On August 22, 1990, the employer discharged the employe, asserting that he had dishonestly taken time off work when he was physically capable of doing the job. The commission affirmed the appeal tribunal's finding of no misconduct.

Held: Affirmed. The videotaped activities were not of the same physical type and duration as the employe's repetitive work for the employer, and the employer submitted no medical expert testimony supporting its position that the employe's physical activities exceeded his physician's restrictions. The commission's finding of a discharge but not for misconduct is upheld.

Ronald K. Engel v. LIRC, No. 93-CV-4541 (Wis. Cir. Ct. Dane County January 24, 1994)

Employe was denied benefits by LID and ATD on dismissal pay allocations basis. His petition for commission review was dismissed by the commission because it was untimely. When he commenced an action for judicial review, he did not make his former employer, against whose account any benefits allowed would be paid, a party defendant. Commission moved to dismiss for failure to make adverse party a defendant as required by sec. 102.23 (1)(a), Stats. Employe argued that (1) because the commission's decision was a procedural one only, dismissing his petition as late and not addressing the merits of his claim for compensation, the decision was not an "order or award granting or denying compensation" within the meaning of sec. 102.23 (1)(a), Stats., (2) sec. 108.09 (7)(a), Stats.' requirement that judicial review in unemployment cases be commenced "in accordance with s. 102.23" therefore did not apply, and (3) the court should therefore look to standards for permissive or mandatory joinder established under ch. 803.

Held: (Bench decision) Complaint for judicial review dismissed for failure to name adverse party. The procedures established in sec. 102.23, Stats. apply in all cases of judicial review of commission decisions, whether they are on the merits of a compensation claim or merely dismiss a petition for review on procedural grounds. In any event, the denial of the petition for review had the effect of denying the claim for benefits, so it was arguably an "order . . . denying compensation" within the meaning of sec. 102.23 (1)(a), Stats.

Suzanne E. Ennis v. LIRC and Red Lobster Division, General Mills Restaurants, Inc., No. 92-CV-1548 (Wis. Cir. Ct. Racine County November 25, 1992) 

The employe-plaintiff worked as a waitress during several periods of employment in the employer's restaurant. Her last day of work was on October 21, 1991, when she was discharged.

On October 20, 1991, another waitress (K.S.) asked the employe and a waiter to sing happy birthday to a customer as part of a custom in the employer's establishment. The employe responded in part that there was hot food to be served first and then they would sing. K.S. told the employe she was such a bitch. The employe returned to the kitchen and K.S. again made remarks. On the third occasion the employe returned to the kitchen with a tray of dirty dishes. K.S. was making remarks to another waitress which the employe considered were referring to her. The employe holding the tray at waist level". . . was so frustrated I just slammed it down." Some plates were broken. The next day she met with the general manager. He discharged her reporting on the termination report that the employe had used profanity in an argument with another employe and threw dishes on the floor.

The ALJ held that the employe deliberately dropped a tray of dishes but is was an impulsive reaction to provocation by a co-worker who was directing verbal abuse at her and denigrating her to a co-worker. In addition, her discharge was not in accord with policy where the employe had not previously been disciplined. The commission reversed as a matter of law and denied benefits holding the employe refused to assist the co-worker (after serving food she collected dirty dishes), argued with the co-worker, and deliberately broke the employer's property because she was angry with the co-worker.

Held: Reversed. The employe's actions were not the deliberate actions of an employe sawing and cutting a fire extinguisher hose, stealing a candy bar or propelling a ten-pound dryer part toward another employe's work area which were the facts in cases cited by the commission.

The employe's instantaneous act may have been an overreaction to a provocation by a co- employe but it did not rise to an intentional and substantial disregard of the employer's interests or the employe's duty. She did not raise the tray and throw it to the floor. It was not a purposeful act on her part. While it was not a mere accident, breaking plates in a restaurant is not uncommon.

Jose G. Estrada v. LIRC and Miller Compressing Company, No. 93-CV-008149 (Wis. Cir. Ct. Milwaukee County April 18, 1994)

The plaintiff, employe, worked about three years for the employer, in Milwaukee, where he lived, until he was discharged for failing to report his absence from work on May 1 and May 4, 1992.

The employe was arrested and removed from the employer's premises on April 30, 1992, by federal drug enforcement agents on an alleged suspicion of a drug conspiracy. Bail was set and he was transferred from the West Allis jail to the Racine County jail, where he remained until he was released on bail on Friday, May 8, 1992. While incarcerated in Racine the employe had access to a telephone and was able to telephone his home and his attorney in Milwaukee collect. He asked that his brother, who was a co-employe, notify the employer of why he was absent. His brother, however delayed notifying their employer until after the employe had been discharged.

The employe knew of the employer's attendance rule that he was required to give notice of absence within four hours of starting time and he had complied with the requirement in the past. He denied knowledge, however, of the rule approved in the labor agreement providing for discharge for failing to report an absence from work to the employer later than the second day unless beyond control of the employe, referred to as the two-day no call/no show policy. The policy was in effect for over five years and strictly enforced. The employer would accept collect telephone calls as a notice as well as notice from relatives. The employe's contention that he was not aware of the rule was considered to be incredible as he had previously been discharged for that rule violation and reinstated under the grievance procedure.

The ALJ's denial of benefits and creation of an overpayment was affirmed by LIRC.

Held: Affirmed. Whether an employe is discharged for misconduct is a question of law. The finding that the employe was aware of the labor agreement rule is supported by the evidence as is the finding that his brother failed to give the employer notice of the reason for the absence until after the employe was discharged. The commission's determination that with unlimited access to a telephone the employe's failure to notify the employer was a deliberate disregard of the employer's interests was reasonable under the circumstances.

(Affirmed in unpublished Court of Appeals decision, May 2, 1995.)

Europlast, Ltd. v. State of Wisconsin, LIRC and Sigrid Laing, No. 90-CV-166 (Wis. Cir. Ct. Marquette County January 28, 1992) 

On several occasions, the employe had been sexually harassed at work by one of the employer's owners. One of these occasions amounted to a sexual assault. The employe did not report the problem because she was embarrassed and because the personnel manager was the owner's daughter. She continued to work because she needed the job but avoided being alone with the owner. About seven months after the assault, the employe was laid off and subsequently offered reemployment by the employer. At that point, she informed her husband of what had occurred, and he told her that he did not want her to return to the employer. The commission accepted the employe's testimony that she and her husband thereupon both decided that she should not accept the offer of reemployment, and the employe refused the offer over the telephone.

The appeal tribunal found that the employer's sexual advances constituted good cause for the employe's failure to accept reemployment. The commission affirmed with a modification emphasizing that although the employe's husband had decided that he did not want the employe to return to the employer, the employe had also made that decision on her own.

Held: Affirmed. The credible evidence supports the commission's decision. Even though the employe's husband had decided that the employe should not return to the employer, the employe had made her own decision not to accept the offer.

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Richard W. Fandry v. LIRC and In-Sink-Erator Mfg. Division, Emerson Electric Company, No. 93-CV-1946 (Wis. Cir. Ct. Racine County May 13, 1994) 

The plaintiff, employe, worked about 13 years for the employer, a manufacturer of garbage disposals.

The employe's supervisor was asked to monitor the employe's work for safety reasons because co-employes had reported the employe was a heavy drug user. Sometime thereafter a co- employe complained that the employe had exposed himself to her. He was instructed under the employer's program where there is a suspicion of use to undergo a drug screening test. The test yielded positive results for marijuana metabolites but was negative for alcohol.

The employe entered into an agreement with the employer wherein, under the employer's assistance program, he would follow an independent counselor's treatment recommendations. Failure to follow the recommendation would result in the employe's discharge. After four counseling sessions, the counselor, suspecting the employe was substituting alcohol for marijuana, requested the employe to complete an alcohol questionnaire. He refused and left the clinic. The director of the counseling clinic contacted the employe by telephone several times and offered him a referral to a different counselor and/or a different clinic. The employe refused the offer. The employer was notified of the employe's refusal and discharged him.

It was held at all administrative levels that the employe was discharged for misconduct connected with his employment.

The employe contended that because the various tests he had undergone did not show he abused alcohol that it was reasonable for him to refuse to complete the alcohol questionnaire.

Held: Confirmed. There is no question but that the employe failed to comply with the agreement he entered into with the employer and such failure evinced a wilful and substantial disregard of the employer's interest. The court (setting forth literature, its personal observation of individuals appearing before him, and remarks by the court of appeals) notes that individuals "suffering from chemical dependency often have a denial system which results in an inability to see their harmful involvement with the chemicals."

Although the employe questioned the background and training of the counselor, the record is silent as to the employe's credentials. The request that he answer the alcohol questionnaire was reasonable and his failure to comply was a violation of the conditioned employment agreement constituting misconduct connected with his employment.

Donald A. Fennig v. LIRC and Golf Avenue Automotive, Inc., No. 93-CV-1821 (Wis. Cir. Ct. Racine County April 11, 1994) 

The employe worked for several years as a painter's helper in an automobile body repair shop. On September 29, 1992, the employer's owner complained to the employe and some co- Worker's about extending their break. He used a loud tone of voice and crude language in reprimanding them. Later that day the employe quit, citing this incident and several others. In the fall of 1991, a telephone conversation had taken place between the employe and the owner, and the owner became upset because he mistakenly thought the employe had hung up on him. The employe had hung up the phone because he mistakenly believed the conversation was over. The next day the owner confronted the employe and poked his finger at the employe's chest. Further conversation led to both individuals acknowledging their mutual mistake and apologizing to each other.

In another incident the employe asserted that the owner had angrily backed a van out of the shop without looking. No injuries or damage occurred and the owner could not recall the incident.

In the spring of 1991, the owner asked the employe and his co-Worker's individually if there were any problems with the shop, and the employe complained about the owner's son, whom the employe asserted threw temper tantrums and made life uncomfortable in the shop. The owner indicated that he would talk to his son.

The employe also has suffered from peptic ulcer disease since 1974, and during his employment continually took medication for this condition. At some unspecified point "in the last year" of the employe's employment, the dosage of medication was increased. The employe saw his physician for this condition on October 15, 1992, after he had quit, and the physician noted that the employe experienced ulcer exacerbations due to "situational stress," but also noted he could work full-time without restriction. The commission affirmed the appeal tribunal's finding of a quit not within any exception.

Held: Affirmed. The court upheld the commission findings that the incidents complained of were not so substantial as to have justified the employe's quitting. One of the plaintiff's arguments was that the ALJ and the commission used the wrong statutory standard by referring to whether the employe was "physically unable to do his work," instead of referring to whether he was "unable to do his work." The court accepts the commission's argument that the ALJ narrowed the issue at the hearing by asking plaintiff's attorney if the issue was whether the employe was "physically unable to do his work," and plaintiff's attorney agreed that it was. Also, no evidence was presented of any psychological reason for an inability to perform the work. Finally, the court notes that the commission found a quitting under sec. 108.04 (7)(a), Stats., not within any exception.

Joan K. Fletcher v. LIRC and DILHR, No. 93-CV-1148 (Wis. Cir. Ct. Dane County May 28, 1993)

Plaintiff commenced an action for judicial review. She failed to name her employer as required by the statutes and she served the commission after the statutory 30-day appeal period expired. The commission moved to dismiss the action.

Held: Motion granted.

Cindy Susann Flom v. Mount Horeb Farmers Co-op & LIRC, No. 91-CV-2561 (Wis. Cir. Ct. Dane County December 13, 1991)

The court notified the parties of a briefing schedule. Two weeks after the brief of the employe was due, counsel for the commission conferred with plaintiff's attorney. Plaintiff's attorney indicated he would not file a brief as he would use other means to deal with the case. The court scheduled a hearing on its own motion to dismiss after being advised of the discussion with plaintiff's attorney and seeking advice from the court on how the commission was to proceed.

Held: Dismissed. Plaintiff's attorney told the court off the record he would not file a brief as it was a matter of the court checking the record. On the record the court was advised by plaintiff's attorney that he would file a brief but preferred a five-minute oral argument. As any brief the employe's attorney would file would be of no assistance to the court (based on the attorney's statement that he would not know where to begin) the court granted its own motion to dismiss for lack of prosecution under sec. 805.03, Stats.

Deanna A. Fruncek v. LIRC and Appletree Credit Union, No. 92-CV-007162 (Wis. Cir. Ct. Milwaukee County May 17, 1993) (Bench decision)

The employe worked almost three years as a loan processor until she was discharged on April 30, 1991.

Employes on a daily basis are to fill in their starting and stopping time, their total hours for the day, and the amount of the time exceeding the one-hour unpaid period for lunch on a bi-weekly time sheet. Employes are paid based on an hourly basis for hours worked.

The employe's supervisory personnel became suspicious of the hours of work the employe was reporting. During a two-week period she incorrectly reported taking only one hour for lunch and working later in the day with the result there were over three hours involving five discrepancies that she falsified. She claimed it was merely simple error except on one occasion when she and two co-Worker's were permitted to take additional time for lunch without reporting lunch on their time sheets.

The commission reversed the ALJ's decision allowing benefits on the ground that the errors were merely unintentional and denied benefits on the ground that the employe was discharged for misconduct connected with her employment as she intentionally falsified her hours of work.

Held: Affirmed. (Because the employe, representing himself, failed to file a brief and because she did not have an attorney, and did not contemplate hiring an attorney, the court refused to permit oral argument.)

Plaintiff names ending with G:                       (Go to: [Top of this page] - [Main UC Digest Index] )

Gazette Printing Company, a Wisconsin Corporation, v. Diana Parker and Department of Industry, Labor and Human Relations Review Commission of Wisconsin, No. 91-CV-331 (Wis. Cir. Ct. Rock County October 10, 1991) 

full text available here

The employe had not worked for the employer long enough to accrue paid vacation time. In January 1990, she informed the employer that she would like a week of unpaid vacation to attend a music festival in August 1990, but she was uncertain of the exact week. In March 1990, she renewed her request and specified the week beginning August 13, 1990. Her supervisor approved the request. During the last week of July 1990, she wrote a note to her supervisor reminding him of her request. He again approved it. On the Thursday prior to the scheduled vacation, her supervisor informed her that there was a potential problem with her request, because her department was shorthanded and she would be needed to help finish the printing of a real estate booklet that needed to be completed that week.

The employe worked through Saturday, August 11, 1990, and because her portion of the work on the real estate booklet was not completed, continued to work through noon Wednesday, August 15, 1990. Her supervisor had spoken to her on several occasions concerning her vacation request, but never made any definitive statements regarding it. Just prior to her leaving on August 15, 1990, the supervisor told the employe that if he had to decide at that moment, she could not go on the vacation. He advised her to work another four or five hours and then he would reconsider the situation. Shortly thereafter, the employe informed her leadworker that she had finished all her work and was leaving. When she returned the following Monday, the employer told her she had been considered to have quit her employment.

The appeal tribunal found that the employe quit her employment and denied benefits. The commission majority reversed and found that the employe had finished all the work she could possibly have done to assist in completion of the real estate booklet; that by staying at work she could not have freed anyone else to do work on the booklet; that her supervisor had kept her in limbo by failing to make a definite decision; and that she had never been warned that her employment would be terminated if she left to take the vacation. Accordingly, the employer's actions constituted a discharge of the employe but not for misconduct.

Held: The credible and substantial evidence supports discharge but not for misconduct.

David A. Gehkre v. LIRC and S. Murfit Jefferson Corporation, No. 91-CV-004474 (Wis. Cir. Ct. Milwaukee County June 3, 1991) (Bench decision)

Plaintiff-employe commenced an action for judicial review after the 30-day appeal period expired in which he did not set forth any of the statutorily required grounds for relief. The commission moved to dismiss.

Held: Motion granted.

Walter W. Gibson, Jr. v. LIRC and Milwaukee River Inn Company, No. 89-CV-010- 353 (Wis. Cir. Ct. Milwaukee County January 31, 1991) 

The employe worked as a dishwasher and kitchen helper until he was discharged for insubordination and directing obscene language at two supervisors.

The employe was directed to put produce away by a chef. He refused and directed obscene language at the chef. Another chef, who was the employe's immediate supervisor, ordered the employe to put the produce away. The employe refused and directed obscene language at that chef. He was discharged.

Benefits were denied at all administrative law levels.

Held: Affirmed. Although the employe denied that he directed obscene language at supervisory personnel, credibility and the weight of the evidence are for the commission. Here the commission found the employer's testimony credible. His actions constituted misconduct connected with his employment.

Willis R. Gifford v. LIRC, No. 88-CV-016-575 (Wis. Cir. Ct. Milwaukee County March 6, 1991)

Willis R. Gifford's wife suffered cardiac arrest during 1975 with resulting serious brain damage. She required around the clock care. As Mr. Gifford had other business commitments, he engaged nurses to assist with her care and perform certain domestic chores around the home. He sought the services of nurses by advertising in newspapers. When nurses answered the ads, he had extensive interviews with them. If he decided to hire them he had them sign a contract which declared they were not employes. However, the contract also specified any communication or changes in his wife's care must be passed through him. Nurses who could not work a scheduled shift were required to find a substitute who met with Mr. Gifford's approval.

Mr. Gifford gave very specific directions to the nurses regarding his wife's care, including what meals were to be prepared and how. He specified when she was to be in bed and when she was to be active. He also specified how transportation arrangements were to be made for her medical and therapy appointments. He gave very specific directions about what nonprescription medications were to be administered to his wife and when. Finally, he gave specific directions to nurses concerning laundry and other household chores. On several occasions he threatened to terminate the working relationship with several nurses if they did not do exactly as he directed.

The nurses, for the most part, performed no significant nursing services for other persons or entities other than as conceded employes. They provided almost none of the equipment or materials needed to carry out this work. None of them advertised or solicited other work to any significant degree. Finally, they were paid by the hour and invested no money in this activity, so they had no real risk of losing money.

Payment of the nurses was funded by payments from insurance companies on policies held by Mr. Gifford to pay for his wife's care. However, the insurance companies had nothing to do with selection and direction of persons performing the services.

Mr. Gifford had been found subject to the unemployment compensation law as of January 1, 1980. He was also assessed for unpaid unemployment compensation taxes up through the third quarter of 1981. He appealed those determinations through the appeal tribunal and to LIRC where the determinations were affirmed. The determinations at issue in the present case were for subsequent periods.

Mr. Gifford contended the nurses were independent contractors, and not employes because of the contract he had signed with them. He also contended that he was not the liable employer, but rather his business corporation or the insurance companies. At the hearing, it became apparent that Mr. Gifford was not involved in the care of his wife after August 15, 1985 because of a divorce proceeding between them. Therefore, the department stipulated that he was not the employer after that time.

The ALJ and LIRC affirmed the initial determinations as changed by the department's stipulation. They found there was no significant difference in the manner in which Mr. Gifford hired and related to the nurses or in the nurses' situations from the period covered by the earlier initial determinations that LIRC had affirmed. Furthermore, LIRC held the business corporation and the insurance companies were not the employer because they did not select, direct or control nor in any other realistic way control the care of Mrs. Gifford, whereas Mr. Gifford did so.

Held: Affirmed. The commission's findings must be upheld if there is any credible evidence to support the findings. The weight and credibility of testimony is a matter to be decided by LIRC. The UC law is remedial in nature and is meant to afford broad coverage.

In light of the standards of review applicable, the court finds the nurses provided no significant equipment or materials for the activity and performed very little similar service for others in a similar capacity. The nurses had no real investment or ownership interest in the activity of Gifford's wife's care. Mr. Gifford controlled his wife's entire routine specifying to the nurses the minute details about that care and about household chores. There is credible and substantial evidence to support the decision regarding direction or control and performance of services in an independently established business. The contention that the nurses were not Gifford's employes is negated by his stipulation in the proceedings on earlier initial determinations that the nurses did provide services to him.

Eva L. Glass v. LIRC and Continental Textile Co. of Wis., Inc., No. 93-CV-005956 (Wis. Cir. Ct. Milwaukee County February 28, 1994) 

After working for the employer from November, 1990 until December 23, 1992, the employe was discharged on January 4, 1993 for attendance violations. She applied for unemployment benefits. That application was denied in a determination dated January 22, 1993 on the grounds that she had been discharged for misconduct. The employe filed an appeal of that determination on February 12, 1993, one week after the last day to appeal.

The employe's explanation for her late appeal was that she was not familiar with the appeal procedure. She subsequently noted that she did not understand the appeal procedure and that she did not comprehend the letter or read it carefully. The appeal tribunal and the commission found that her excuse did not show probable good cause that it was beyond her control to appeal on time. The appeal was dismissed.

Held: Affirmed. The question involved here is a question of law. The court is as competent as the commission to determine if the employe showed probable good cause for her failure to timely appeal. Therefore this court owes no deference to the commission's conclusion.

The employe has failed to show any reason which was beyond her control for not filing the hearing request on time. She was informed that the decision was final unless appealed and where she could receive assistance if there was something she did not understand. Her lack of knowledge of the appeal procedure was not beyond her control. Decision affirmed, appeal dismissed and benefits denied.

Robert Goldberg, d/b/a Goldberg Trucking v. LIRC, No. 89-CV-358 (Wis. Cir. Ct. Fond du Lac County April 9, 1991)

Robert Goldberg was a sole proprietor of a trucking company. He owned a number of trucks and engaged drivers to drive the trucks. The drivers signed a contract which he termed a lease agreement. Under the agreement, and in fact, Goldberg provided fuel, insurance, telephone calling cards, storage space, truck, truck repairs, billing and marketing, licensing, and other items in connection with driving of the trucks. He also paid for all necessary road taxes and permits. The drivers merely drove the truck and took care of their own personal expenses. If a customer did not pay for hauling, Goldberg absorbed the truck operating expenses, with the drivers merely not being paid for their services.

Periodically, the trucks were trip leased to another carrier. These leases were from Goldberg as lessor to the other carrier as lessee. The drivers were not parties to such arrangements.

Drivers could only obtain substitute drivers with Goldberg's permission, and he then paid those drivers. Also, the truck drivers could not transfer their working relationship with him without his consent.

In 1987, Goldberg instituted a program whereby drivers could earn credit towards the purchase of equipment. This amounted to two and one-half percent of their share of the driving proceeds, or somewhere between $340 and $450 a year. This credit did not apply to any particular vehicle, and could only be transferred to other Goldberg drivers.

After an audit, DILHR held that the drivers were Goldberg's employes and issued an initial determination holding him subject to the unemployment compensation law as of January 1, 1986. He contended the drivers were not his employes. After the hearing, an appeal tribunal decision was issued affirming the initial determination. LIRC affirmed. Goldberg argued that the drivers could not be considered employes because they met the criteria of Ch. ILHR 105, Wis. Admin. Code used to determine whether contract operators were not employes of trucking carriers. He argued that they had a bona fide lease of the truck by virtue of the fact that when the trucks were leased for one trip, they in effect became lessees from the trip lessee. He further argued that the drivers were free to hire another person as a driver.

Held: The drivers were not contract operators in the first place because that term is defined in ILHR 105.001 (2), Wis. Admin. Code as meaning some individual who leased a motor vehicle to a carrier for use in a carrier's business. Here, even accepting Goldberg's characterization, the drivers were leasing the motor vehicle from him. They owned no motor vehicle nor did they have any interest in a motor vehicle to lease to anyone. Second, the drivers did not hold the vehicle under a bona fide lease arrangement from any person other than Goldberg who was the carrier. They did not lease the truck from any person who in turn had leased the truck from plaintiff. The lease arrangement on a trip lease was strictly between Goldberg and the trip lessee, with the driver being merely a driver. The credit arrangement towards purchase did not constitute a true ownership interest in a vehicle. It did not apply to any particular vehicle, and was not freely transferable, being transferable only to another driver for plaintiff with plaintiff's permission.

The drivers also did not meet the other criteria for performing in an independently established trade, business or profession, particularly that of having an economically independent business. In this situation, Goldberg provided all means for operating a trucking business, including truck, fuel, maintenance, storage, marketing, telephone calling cards, billing and collection, licensing, and other items. The only thing the drivers provided were their personal services and payment of their personal expenses.

The services were not performed in an independently established business as there was no evidence of the drivers driving for other entities or having previously driven for a general trucking carrier. Moreover, their services were very much integral to plaintiff's business.

Steven Goldberg and Chester Eisenhauer, d/b/a Kenosha Counseling and Psychiatric Clinic v. DILHR & LIRC, No. 90-CV-001430 (Wis. Cir. Ct. Kenosha County July 22, 1991)

Steven Goldberg and Chester Eisenhauer as partners, operated a state certified outpatient mental health clinic. Certification was important to the clinic because without it, it would not be able to bill and collect from third party payors for patient care such as insurance companies or governmental agencies. These billings accounted for 85 to 90 percent of the clinic's billings.

To retain the certification, the clinic was required to have certain types of clinic staff and was required to comply with requirements set forth in the Wis. Admin. Codes. These included requirements for any psychotherapist practicing in the clinic and a requirement that psychotherapists be overseen by a licensed clinic psychologist or psychiatrist.

During the first half of 1986, there was another partner involved, Joan Rattan. Subsequently, she semi-retired, but retained a loose relationship with the clinic similar to that of two other therapists, Michael and Linda Scheible. All three saw patients in the clinic and billed through the clinic. Billing was done by clinic clerical personnel hired by the partners. In addition, the clinical supervisor, required under the Department of Health and Social Services rules, was an individual engaged and compensated by the partners. All advertising was done by the clinic. The partners retained the right to terminate the relationship with the therapists if friction developed between a therapist and the partners or with other therapists. This right could also be exercised if unprofessional conduct occurred. Also, the clinical supervisor had the right to put limitations on the type of treatment.

Neither of the Scheibles did any other psychotherapy work, because they had other full-time work. While Rattan did have some other psychotherapy work, 80 to 90 percent of her fees from that psychotherapy work after she sold her partnership interests in June of 1986, derived from a relationship with appellants.

The therapists were required to pay nothing out of their own pocket. Instead, when their patients were billed, appellants retained 40 percent to pay overhead and profit, remitting the remaining 60 percent to the therapists.

None of the therapists advertised. They obtained no referrals from appellants and obtained patients only by referrals from people who knew them or people who specifically asked for them when calling the clinic. While they may have had some reputation and goodwill, this was valuable only to a certified clinic. Furthermore, even if there was goodwill, a relationship with a clinic such as appellants' was necessary to carry on the practice.

In 1989, DILHR audited appellants' books and records and noted the therapists to be employes. An initial determination assessed appellants additional unemployment compensation taxes for the four quarters of 1986 and 1987. The appeal tribunal affirmed, reasoning that they did not perform their services in an independently established business because they provided nothing other than their services to the enterprise and because of the necessity of the clinic to comply with the H& SS administrative rules, the services were not performed free from the employing unit's direction or control.

Appellants' petition argued that Star Line Trucking Corp. v. DILHR, 109 Wis. 2d 266, 325 N.W.2d 872 (1982) prohibited reference to the H& SS administrative rules in connection with determining whether the therapists' services were performed free from appellants' direction or control. In affirming the appeal tribunal decision, LIRC held that Star Line did not prohibit reference to the rules because the legal requirements were aimed at individuals instead of at trucks and because the rules themselves did not establish control, but provided a reason for control.

Held: Affirmed. There is little substantial evidence to support the LIRC decision. However, because of H& SS rules, appellants had to have at least the right to direct so there was sufficient evidence to support the reasonableness of LIRC's decision that the services were not performed free from appellants' direction or control. Further, because the therapists needed a relationship with a certified clinic to carry on their practices, their profession was not being practiced in an independent arrangement.

(Affirmed in published decision, 168 Wis. 2d 621, 484 N.W.2d 568 (1992 Ct. App.); Petition to Review denied)

Goldberg and Eisenhauer d/b/a Kenosha Counseling and Psychiatric Clinic v. DILHR and LIRC, 168 Wis. 2d 621, 484 N.W.2d 568 (1992 Ct. App.), Petition to Review denied

Goldberg and Eisenhauer have Master's Degrees in social work and are partners who appeal from the circuit court judgment affirming a LIRC order. LIRC found that three therapists associated with the partners' state certified, outpatient psychiatric clinic were employes within the meaning of sec. 108.02 (12), Stats. so that the parties were ordered to make past-due U.C. contributions. The three therapists who have Master's Degrees in social work or in psychology, provided counseling services to patients at the plaintiffs' clinic in 1986 and 1987 and were considered to be private contractors by the partners.

The statute establishes the standard to determine whether an individual is an employe for U.C. purposes and not the parties' labels or agreements. A two-step analysis is required. First, has the individual been performing services for an employing unit in an employment. If so, the burden shifts to the employer to establish it is exempt by demonstrating two conditions. The first condition is that the employe has been and will be free from the employer's control or direction both under the contract and in fact. The second condition is that the services are performed in an independently established trade, business, or profession, in which the individual is customarily engaged. The two conditions are questions of fact which may not be overturned if they are supported credible and substantial evidence.

The partners do not dispute that the therapists were employes but they challenge the finding that they could control and direct the therapists' work. They also challenge the finding that the therapists were not customarily engaged in an independently established business or trade. Because an employer must establish that both conditions apply and because condition one is supported, the court will not consider condition two.

The clinic was certified by the Wisconsin Department of Health and Social Services (H& SS) under numerous Wis. Admin. Code provisions. Certification was important as it allowed the clinic to bill and collect from third parties such as insurance companies and governmental agencies, who paid 85-90 percent of the payments. Also, a clinic that fails to comply with the certification rules may lose its certification.

Certification requirements provide that therapy may be given by various qualified individuals, but when given by individuals such as the partners and the therapists, their work must be reviewed and supervised. The clinic must make certain documentation available to H& SS and is subject to unannounced inspections. All of the outpatient psychotherapy had to be performed through a certified clinic in order to be paid for by third parties. The partners selected and paid for the supervision by a qualified individual. The therapists, were not necessary for the clinic to be certified.

The other therapists had no investment in the clinic, did not share in profits or losses, received no referrals from other members of the clinic, and generated their own clientele. They set their own fees. The clinic secretary billed the appropriate party with 40 percent of the payment retained by the clinic. The clinic also attempted to make collections with the therapist directing the action to be taken if collection was unsuccessful. The clinic advertised in the telephone book but only one ad listed all the therapists. The therapists, who worked part-time, paid for their own malpractice insurance and continuing education costs. They could refer patients to counselors outside of the clinic, do counseling apart from the clinic, and the relationship could be terminated by the therapists or the clinic at anytime for any or no reason.

It was critical for the clinic's financial success to remain certified. The clinic is the entity which must comply with the rules. The partners had a personal stake in the financial success and protected that stake by requiring that the therapists take care of administrative tasks to enable the clinic to remain certified. The partners' personal stake in the clinic remaining certified supplies credible and substantial evidence that they could have controlled and directed the therapists. The therapists were subject to the supervision of a consultant hired by the partners with the implication that the consultant could request the therapists to alter the treatment rendered.

Star Line Trucking Corp. v. DILHR, 109 Wis. 2d 266, 325 N.W.2d 872 (1982) held that PSC rules did not establish direction and control over drivers in that PSC rules envisioned control over the truck but not the driver. LIRC in that case treated the PSC rules as the exclusive determinative factor of direction and control by contract. In this case, LIRC used the rules to provide that occasion where control or direction could be exercised in fact by the partners over the therapists if they failed to comply with the rules or cooperate with the supervision.

The clinic but not the therapists were required to comply with the rules, and the partners had a strong interest in requiring that the therapists complied with the rules which kept the clinic certified. It is immaterial whether the right or power to control is in fact exercised as long as the right to exercise such control exists.

Goodman Forest Industries, Ltd. v. LIRC and Marilyn I. Wysocki, No. 91-CV-209 (Wis. Cir. Ct. Marinette County September 24, 1993) (Bench decision)

Co-defendant employe worked about six years as a production worker in the employer's veneer and lumber processing business. Her last day of work was on December 22, 1989, and she was discharged on January 12, 1990.

During the fall of 1989 the employe was off from work due to a work related injury. Following her last day of work she was absent with notice on December 26 and 27 due to depression and gastritis. She notified the employer she would be absent until January 4, 1990, after seeing her doctor on January 3. She was absent on January 4 and was worried that she would be discharged if she failed to notify the employer of her absence. When she was absent on January 5, the employer notified her that she was on a five-working-day disciplinary suspension. She was then absent through January 12. The employer notified her she was discharged. After she was discharged, the employer received medical documentation that because of her medical condition she was unable to work during her absence.

The employer contended that the employe would not have been discharged if she had submitted medical documentation during her absence. The employe contended that she was not aware that medical documentation was required during her absence in order to support the absence. As she was never advised of the medical documentation needed during the absence, the ALJ and commission held that her absence and failure to supply the employer with medical documentation during the absence did not evince a wilful, wanton and substantial disregard of the employer's interests and the standards of conduct the employer had the right to expect of her. Benefits were therefore allowed.

Held: Affirmed.

William J. Govek v. DILHR, No. 91-CV-308 (Wis. Cir. Ct. Eau Claire County August 13, 1991) (Bench decision).

Plaintiff-employe moved the court to set aside a LIRC decision holding he was ineligible for U.C. benefits. The commission filed a Motion in Opposition to his motion seeking dismissal of plaintiff's motion. Grounds for the commission's motion were that plaintiff failed to serve a summons or complaint, he failed to name LIRC or his employer as defendants, he failed to set forth a cause of action, and the documents he served on the commission were served after the 30-day appeal period expired.

Held: LIRC's motion granted.

Michael J. Gross v. LIRC and Henco-Frank Motor Sales, No. 92-CV-773 (Wis. Cir. Ct. Fond du Lac County June 11, 1993) 

Plaintiff-employe worked about six years until April 21, 1992, as the finance and insurance (F & I) manager for the employer new and used automobile dealership. He considered that one of his duties was to establish a vehicle delivery date with customers but this varied with the salesman or the president establishing the delivery date.

The employe was on vacation for over two weeks and the employer's president took over the employe's duties. About a month after he returned from vacation he overheard the president, who was closing a sale with a customer with another salesman present, set the delivery date. The employe came into the office and indicated the president could not set the date of delivery. The president disagreed. Shortly thereafter the president asked the employe to complete the paperwork. The employe said that if the president wanted his job he should go ahead and do it. The president responded that the employe should either do the job or pack up and leave.

The employe's version was that the president told him that he, the employe, did not know when to shut up and that he should pack his things.

The employe packed his personal items and left, thereafter filing claims for U.C.

The deputy, the ALJ and LIRC accepted the employer's version of events as the most credible and suspended benefits on the ground the employe quit his employment and that such quitting was not within any exception.

Held: Affirmed. The employe contended he was denied a fair hearing. This was because he was not given an opportunity to cross-examine the employer's president, that he was not permitted to examine a witness to show that the president was not doing the F & I manager's job properly, and that he was not permitted to show the president was not the owner as he had testified or to bring out statements made by the president during the initial investigation.

The employe, however, was given the opportunity to cross-examine the president, who had supervisory authority over the employe. Whether the president was owner or not was therefore not probative of the issue in dispute. Whether the president was doing the F & I manager's job properly was not relevant to the issue. The statements allegedly made by the president at the initial investigation are not admissible under Wis. Admin. Code sec. 140.12 (1).

The employe also alleged that his request to submit expert testimony on the duties of the F & I manager at a further hearing was not denied or even referred to in the commission's decision. The job description was not, however, relevant and there was no breech of discretion in not holding a further hearing.

Although in reviewing the record the court would have accepted the employe's version of events, it was up to the commission to determine credibility and choose one version over the other. The version they accepted is supported and supports the finding that the employe quit his employment.

William F. Grace v. LIRC and Comet, Inc., No. 92-CV-2416 (Wis. Cir. Ct. Dane County May 4, 1992)

The employe began working for the employer, a steel fabrication and welding repair business, in November, 1988. He was off of work for treatment of carpal tunnel syndrome from May, 1990 through August, 1990 and received Worker's compensation benefits. He worked from August 31, 1990 through December 21, 1990, limited to light work. He then told the employer he was taking off because his hands were swollen. In January, 1991 he told the employer the doctor told him not to work until April 7, 1991. At the employe's interview for UC benefit eligibility on January 17, 1991 the employe stated that he would not return to work for the employer. The commission affirmed an ATD that the employe quit, but not for a reason which was an exception to the quit disqualification of sec. 108.04 (7)(a), Stats.

Held: Affirmed. The evidence establishes that the employe had decided, by January 17, 1991, not to return to work for the employer even if released by his doctor. He did not inquire about work alternatives. The commission could reasonably conclude that he quit voluntarily and not for good cause attributable to the employer. He had alternatives to quitting when he did. Therefore benefits are denied.

William N. Grube v. LIRC and Tecumseh Products Company, No. 90-CV-154 (Wis. Cir. Ct. Calumet County August 14, 1992)

The employe had worked in the employer's machine shop since 1973 and also served as a union shop steward. The employer manufactures lawn and garden equipment engines. In approximately late January 7, 1990 the employe suggested to a female co-employe that if she had taken a short lunch they could leave early and fool around at his house. He repeated that comment to her later after talking to a foreman. In February, 1990 the employe grabbed his pants zipper in a suggestive manner while the female co-employe was kneeling to pick up some parts. Later that day he told her that she had nice tits and that they would become firm if she stayed on that job.

After the co-employe complained about this behavior the employe was discharged. The employe was reinstated about one month later without back pay. The employe's benefit application was denied on the grounds that he was discharged for misconduct.

Held: Affirmed. The record establishes that the employe had adequate notice of the prohibited conduct. It also shows the employer's substantial business interest in prohibiting that conduct. The employe's conduct was intentional and substantial. The commission's decision is consistent with public policy prohibiting sexual harassment and which sanctions employers which allow it to occur.

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