UC Decision Digest - 1991-1994 case summaries; plaintiff names A - C  

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 A through C.

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

Affiliated Nursing Services, Inc. v. LIRC and Robert A Barker, No. 91-CV-000905 (Wis. Cir. Ct. Milwaukee County February 11, 1991) (Bench decision)

Barker (employe) was discharged by plaintiff, which alleged that it was for misconduct. On November 17, 1990, two initial determinations were issued to the parties. One determination held that as of week 3 of 1990 the employe was discharged but not for misconduct. That determination, allowing benefits, also noted that the actual payment of benefits depended upon the resolution of another issue. The other determination dated November 17, 1990, denied benefits in week 45 of 1990 on the ground the employe was not able and available for work. On November 27, 1990, within the appeal period, plaintiff sent a letter to the local office which in part objected to the decision allowing benefits. Subsequent determinations allowing and/or denying benefits were issued. The plaintiff wrote a December 7, 1990 letter, after the appeal period had expired for the November 17, 1990 determinations, expressing concern regarding the allowance of benefits. The December 7, 1990 letter was considered a late appeal and dismissed by the ALJ and the commission.

Plaintiff, by its administrator and shareholder, within the 30-day period to commence an action for judicial review, filed and served a Notice of Motion and Amended Affidavit.

Held: Motion denied and matter dismissed. Plaintiff's administrator and shareholder was not an attorney and could not make an appearance in behalf of the corporation without improperly engaging in the practice of law.

NOTE: Because the appeal tribunal and commission erred in dismissing the appeal, the commission set aside its decision under sec. 108.09 (6)(b) and the appeal tribunal decision under sec. 108.09 (6)(d), Stats., and remanded the case to the department for hearing and decision on the merits of the misconduct issue.

Meera Agrawal v. LIRC Sinai and Samaritan Medical Center, Inc., No. 92-CV-011601 (Wis. Cir. Ct. Milwaukee County November 19, 1992).

The commission affirmed an ALJ's decision holding that plaintiff-employe's work in a medical training program for the co-defendent employer was as an intern and in excluded employment under sec. 108.02 (15) (j) 3., Stats.

Plaintiff, pro se, commenced an action for judicial review which was served by U.S. Postal Service Certified Mail postmarked on the 30th day of the appeal period but received three days later. The commission and co-defendant moved to dismiss as the pleadings were not timely received.

Held: Motion granted.

Marlene W. Albrecht v. LIRC and Bormann's, Inc., No. 89-CV-6309 (Wis. Cir. Ct. Dane County January 25, 1991)

The court reversed LIRC and found that the employe had good cause for her failure to accept an offer of employment from the employer. Subsequent to the court's decision, the employe's attorney submitted a motion for attorney fees and costs to be paid by LIRC, citing the Wisconsin Equal Access to Justice Act found at section 814.245 (3), Stats. That statute allows "costs" to the prevailing party "in any action by a state agency," unless the court finds that the state agency was "substantially justified" in taking its position, or that special circumstances exist which would make the award unjust.

LIRC pointed to the fact that section 102.26, Stats., specifically provides that no "costs" may be taxed against it. LIRC acknowledged that in DILHR v. LIRC, 155 Wis. 2d 256, 269, 456 N.W.2d 162 (Ct. App. 1990), the court noted that DILHR could have been subject to costs under section 814.245 (3), Stats., since it had initiated the action against LIRC in that proceeding. However, LIRC argued that in Albrecht, it had not initiated the action; and again, section 102.26, Stats., specifically exempted LIRC from costs.

In addition, it was argued that when Section 814.245, Stats., was created in 1985, sec. 814.04, Stats., which provides for limits on costs and attorney fees for civil actions, was amended to provide for the exception created by section 814.245, Stats. However, the same legislature did not amend section 102.26, Stats., to provide for the exception of section 814.245, Stats.

Finally, and secondarily, LIRC argued that its decision on the merits of the failure-to-accept issue was substantially justified.

Held: Motion denied. After oral argument the court issued a one-sentence decision stating: "The court concludes, as argued by the respondent, that section 102.26 and section 108.09 (7) preclude such an award, and accordingly, denies the motion."

Aluminum Casting & Engineering Co., Inc. v. LIRC and Angel R. Santos, No. 92-CV-012-400 (Wis. Cir. Ct. Milwaukee County June 14, 1993) 

Co-defendant(employe)worked for over two months in the employer's foundry until September 5, 1991. His primary language is Spanish and he does not speak or understand very much English.

The employe on August 30 sustained an on-the-job injury for which he was treated at a medical center. Pursuant to the employer's policy, he also underwent drug testing at the medical center. On September 5 the employer was advised that tests revealed the employe tested positive for cocaine metabolites. He was or was not advised in English that as an alternative to being fired for being under the influence of drugs that he could retain his job if within 72 hours he provided the employer with certification that he was undergoing treatment or counseling for drugs. He understood he was fired. He was or was not advised in English on September 6 of the same option when he went to get his paycheck.

LIRC affirmed the ALJ's decision that the employe did not quit but that he was discharged but the discharge was not for misconduct connected with his employment. This was based on the theory that the employer failed in its duty to adequately communicate the employer's policy to the employe and also failed to adequately explain the rules to him.

Held: Affirmed. One issue is whether the commission's MEMORANDUM OPINION is subject to judicial review. Because such opinion contains the commission's discussion, rationale and conclusions, and because judicial review is based upon the entire record, it is clear the court may review the findings and conclusions in the MEMORANDUM OPINION. Int'l. Hotel Co. (sic--International Harvester Co.) v. Industrial Comm., 157 Wis. 167, 172, 147 N.W. 53 (1914).

The other issue is whether the findings adopted by the commission are supported by credible and substantial testimony. The employer's witness testified the employe had a very good grasp of the English language and that he knew exactly what was required of him to maintain employment. The employe testified on the other hand that he had a limited grasp of the English language (an interpreter was used in the deputy's investigation and the hearing), that the policy to retain his employment was not explained to him, and that he had never used illegal drugs.

The employe is asking the court to overturn the commission's decision on credibility grounds. The credibility of witnesses and the weight of the evidence, which are crucial here, are solely within the exclusive province of the commission. The employe's testimony supports the commission's findings of fact.

Anderson Cleaning Systems, Inc., v. LIRC and Grzegorz Pioterek, No. 93-CV-433 (Wis. Cir. Ct. Winnebago County February 14, 1994) (Bench decision)

The employe began working for the employer in April, 1991 as a janitor. The employer is in business providing cleaning and janitorial services. In May, 1991 the employe began working at a second job. In October, 1991, after receiving complaints from the client, the employer removed the employe from that assignment. At that time the employer gave the employe a handwritten note that detailed the client's complaint and stated that the employe must learn the English language in order to work for the employer. The employer did not place the employe in another assignment.

In January, 1992 the employe applied for unemployment benefits. The employer then contacted the employe about a new assignment. The employer notified DILHR that the employe had refused an offer of work. The employe responded that no offer had been made. An initial determination concluded that the employe had failed to accept an offer of work without good cause. At a hearing held to resolve the issue, the employe testified that during the week in question he was suffering from a bad back and was unable to work. The ALJ found that the employe did not fail to accept an offer of work and was eligible for benefits. The commission affirmed.

Held: Reversed. It is clear from the testimony and evidence presented by the employe at the hearing that he was not able to work during the week in question. The statute requires an employe to be able and available for work in order to receive benefits. In its decision the commission agreed that the employe was not eligible because he was not able and available for a minimum of 15 percent of the suitable work in his labor market. Therefore the ALJ and the commission acted beyond their powers in allowing benefits.

Don J. Anderson v. F. C. Price Corp. & State of WI LIRC, No. 92-CV-2120 (Wis. Cir. Ct. Racine County March 3, 1993)

The employe worked full-time as a field representative for the employer from July, 1991 through March 3, 1992. He applied for unemployment benefits and was determined eligible since he was discharged, but not for misconduct. The employer appealed and a hearing was scheduled. The employe did not appear. The administrative law judge found that the employe voluntarily terminated his employment but not for any exception to the quit disqualification and therefore concluded that he was not eligible for benefits. He was ordered to repay benefits he had received.

The employe appealed that decision and requested a rehearing. He stated that he did not appear because he thought his attendance was unnecessary since he had a job. He stated that he had called the unemployment office on the morning of the hearing and left phone numbers where he could be reached if his presence was necessary. The administrative law judge concluded that the employe had not shown probable good cause for his failure to appear and denied the rehearing request. The commission affirmed.

Held: Affirmed. The employe was given an opportunity to have his day in court. He chose not to attend. His excuse demonstrates a nonchalant attitude toward the appeal process. The decision that he did not show probable good cause is best answered by the department which knows its own caseload and requirements. There is no need for the court to substitute its view for the agency's determination in this case. The commission decision is affirmed.

Glenn F. Anderson v. LIRC and The Charlton Group, Inc., No. 92-CV-1257 (Wis. Cir. Ct. Dane County March 25, 1993) 

The employe worked as a telemarketer for the employer beginning August 5, 1991 and was paid $7.25 per hour. He was scheduled to work on Mondays, Tuesdays and Wednesdays. The employe left work early on September 10, 1991 due to illness. He subsequently called the employer on days he was scheduled to work, through September 18, 1991, to advise that he was still sick and unable to work. He did not contact the employer or report to work during the following week. When he contacted the employer to advise that he could work the following Monday, he was told he was considered to have resigned. Benefits suspended on the ground that the employe quit.

Held: Affirmed. The commission's decision that the employe's actions constituted a resignation in accord with the employer's policy manual has a rational basis. The employe had received the policy manual and knew the policy regarding absences. His disregard of the policy supports the finding that the termination of his employment was voluntary. The employer's occasional deviation from the policy manual does not operate to invalidate the entire manual. None of the statutory exceptions to the quit disqualification apply.

Peter O. Anderson v. LIRC and Action Floor System, Inc., No. 92-CV-2865 (Wis. Cir. Ct. Dane County May 20, 1993) 

The employe-plaintiff, of Ironwood, Michigan, worked about 17 months as a laborer for the employer's strip flooring operation at Mercer until he was discharged on October 18, 1991.

The employer had a policy known to the employe that Worker's who threaten or otherwise harass co-Worker's are subject to immediate discharge.

Sometime near the end of the employe's employment he began acting in an unusual manner toward a female co-worker. His actions included making faces, making noises, calling names and jumping up and down. She asked him to stop. He asked her to do some work for him which she refused because she had work to be done on a special project. This led to an argument. He pushed a metal cart toward her which did not hit her. He had also frequently moved her cart in order to push skids to another location rather than take a different route. She asked him not to disrupt her work by going through her work area.

On October 18 the employe proceeded through the co-employe's work area with a load of skids pushing her cart aside. She placed the cart back in its original position and the employe delivered the skid. He returned to the co-employe's work area. She asked him not to move her cart. He did, pushing a cart toward her. He was discharged.

The ALJ allowed benefits on the ground the employe was discharged but not for misconduct as he had never been warned. The commission reversed and found that the co-employe was pinned between carts which was potentially serious conduct amounting to misconduct.

Held: Reversed and remanded. Under the standards of judicial review in this case, LIRC's legal conclusion is entitled to great weight. However, its factual findings must be supported by substantial evidence in the record. Even when all reasonable inferences are drawn from the evidence of record, there are a number of findings made that are not supported in the record to fit this case into the fact situation in Mc Graw-Edison Company v. ILHR Dept., 64 Wis. 2d 703 (1974). There is no evidence the co-employe was injured or "pinned" by the cart. There is ample evidence to show that the employe was angry with his co-employe and that he acted intentionally. Missing is evidence to show that the reason he chose to act out his anger was one of sufficient danger to the co-employe. LIRC should also consider in this remand whether a warning was needed, as found by the ALJ, in view of the fact the employe was given a copy of the company policy regarding harassment of co-employes.

(In a subsequent decision LIRC set aside its decision and affirmed the ALJ's decision).

Alton A. Anschutz v. DILHR Unemployment Compensation Division (In re the account of Moorehead Machinery and Boiler Co.), No. 93-CV-616 (Wis. Cir. Ct. Brown County August 26, 1993) 

Complaint for judicial review named only DILHR-UC Division (with a parenthetical reference to employer) in caption. It was served on the DILHR Secretary's office within 30 days, but was not received at LIRC until after 30 days. LIRC moved to dismiss.

Held: Dismissed. The failure to name LIRC or the employer was not grounds to dismiss, as this was only a defect in the caption, and the body of the complaint showed that it was for review of commission's decision. However, the failure to obtain service on the commission with 30 days of the date of its order is fatal to the complaint. The situation is the same as in Gomez v. LIRC, 153 Wis. 2d 686 (1989 Ct. App).

Estell Anthony v. LIRC and Greenville Hometown Corp., d/b/a Good Guy's Pub, No. 91-CV-1066 (Wis. Cir. Ct. Dane County November 4, 1991) 

As a result of dissatisfaction with the employe's performance as a bar manager, the employer demoted her to the position of bartender. As a consequence of this demotion, the employe sustained a significant reduction in her compensation. She argued that the cut in pay constituted good cause for her termination attributable to her employer. The commission concluded that there was good reason for the demotion and the consequent reduction in pay and that therefore there was no showing of good cause attributable to the employer.

Held: Affirmed. The record suggests significant problems in the employe's job performance as manager. The employer gave her opportunities to improve her performance. When the problems were not resolved, her employer demoted her with the resulting reduction in pay. Because the employer did not act in an unreasonable or arbitrary manner, the record does not support a conclusion that the employe had good cause attributable to the employer for quitting her employment.

Terry D. Ashford v. LIRC and Milwaukee Metropolitan Sewerage District, No. 93-CV-009880 (Wis. Cir. Ct. Milwaukee County October 11, 1993)

The employe-plaintiff's action for judicial review was not commenced within the 30-day appeal period and he failed to serve the commission with an authenticated copy of a summons. The commission moved to dismiss because of plaintiff's failure to comply with statutory requirements.

Held: Motion granted.

Mary Joyce Athey v. LIRC and Wichelt Imports, Inc., No. 91-CV-676 (Wis. Cir. Ct. La Crosse County August 10, 1992)

Employe was a manager of a company that engaged in wholesale distribution of needlecraft products. The practice in the industry was that designers operated independently, creating designs for needlecraft projects that were intended for and called for a specific manufacturer's fabric, and wholesalers (like employer here) distributed designs and fabrics to retailers. Wholesalers would deal exclusively with certain manufacturers; the popularity of designs calling for use of those manufacturers' fabrics therefore affected wholesalers' earnings. Employe set up her own design business. After initially designing only for fabric handled exclusively by the employer, the employe began marketing some designs calling for use of fabric handled exclusively by the employer's competitors. After she refused to agree not to design for competitor's fabrics, the employe was fired. The commission concluded that by refusing to so agree, in the face of the employer's warning that she would be terminated if she did not, the employe voluntarily terminated her employment, and not with good cause attributable to the employing unit.

Held: Affirmed. Credible, substantial evidence supports the commission's findings. Thus, employe knew she was beginning to develop sensitive conflicts when she expanded her design business.

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

Frank Balistreri v. LIRC and A. O. Smith Corp., No. 93-CV-016020 (Wis. Cir. Ct. Milwaukee County October 11, 1994)

The employe began working for the employer as a welder in August 1972. In May 1988 the employe was discharged for having been out of his work area in March 1988. That discharge was changed to a disciplinary suspension with the understanding that a further violation would result in immediate discharge. He last worked as an assembler on second shift as part of a labor pool. On August 6, 1992, about one hour after his scheduled starting time, the employe was seen walking in a parking lot across the street from the plant premises. About one hour later the employe was seen by a supervisor and asked where he had been. After first stating that he had been in the office, the employe stated that he did not know where he had been. The employe was subsequently discharged. The employe claimed he was out of his work area by mistake because of medications he was taking. The commission found that the employe did not meet his burden of proving medical incapacity to form the necessary intent. The commission, affirming a decision of an administrative law judge, concluded that the employe had been discharged for misconduct and was not eligible for unemployment benefits.

Held: Reversed. No reasonable person could consider the facts of this case and find that the employe had engaged in misconduct as defined by the courts. The evidence does not support a legal determination of behavior reflecting an intentional and substantial disregard of the employer's interests or the employe's duties. Being gone from his worksite for an hour is ordinary negligence in an isolated instance.

Gary B. Bauer v. LIRC and Paper Corporation of America, No. 91-CV-346 (Wis. Cir. Ct. Waupaca County June 9, 1992) 

full text available here

The employe had worked as a truck driver for this paper distribution company for about 22 years. In February, 1989 the truck he was driving struck the rear of a car that was turning. The employe received a written warning for that incident. In April, 1989, he lost a ramp from his truck. In December, 1989 the employe backed his truck into an object on a customer's loading dock. He received verbal warnings for those two incidents.

In May, 1990 the bumper of the employe's truck got caught on a loading dock and tore off. In April, 1991 the employe's truck hit the rear of another vehicle. He was then suspended and subsequently discharged. The commission affirmed an ALJ's decision that the employe was discharged for misconduct.

Held: Affirmed. The employe does not dispute the existence of the accidents, but contends that none of them were intentional. However, the employe's poor driving record meets the misconduct definition by showing a substantial disregard of the employer's interests.

Richard D. Baumann, d/b/a Downtown TV v. LIRC and DILHR, No. 91-CV-648 (Wis. Cir. Ct. Marathon County August 10, 1993)

A department audit revealed that certain persons repairing televisions and VCRs were statutory employes of the plaintiff per sec. 108.02 (12), Stats. The employes worked primarily in the basement of the employer's shop on repair orders received in the shop. Plaintiff relied entirely on the profits from this repair work. The employes were paid a commission based on 50 percent of labor costs and mark up on parts. The employes had some of their own tools but primarily used the employer's tools without charge. They did not have any contract with the employer. The employer did all the billing and collection and took care of customer complaints. The employes were required to fix any negligently performed repairs without extra pay. They were not responsible for any of the employer's overhead or expenses.

An initial determination was issued finding that it owed unemployment compensation tax contributions for the statutory employes. The appeal tribunal affirmed. It found, however, that there was no direction and control by the employer over the actual performance of services.

The commission affirmed. LIRC also found that the two Worker's could not meet any of the five tests for being independently established, that is: they were integrated into the employer's business; they did not hold themselves out; they had no proprietary interest; they were economically dependent upon the employer; and they took little if no entrepreneurial risk in this particular enterprise. LIRC considered issues such as filing Schedule C's for income tax purposes and lack of insurance, etc. to be irrelevant under these circumstances.

Held: Affirmed. Under the standard of review, the court is obliged to uphold LIRC's findings even though they be contrary to the great weight and clear preponderance of the evidence. While there may have been testimony in the record to support both arguments advanced by LIRC and the plaintiff, especially as to proprietary interest and economic dependence, it is not the court's duty to weigh the evidence. The court agrees with LIRC on each of the five factors required to be proven in the independently established part of the test.

Lisa E. Behling v. LIRC, Orange Tree Imports, Inc., and Moseleys Business Interiors, Inc., No. 93-CV-3426 (Wis. Cir. Ct. Dane County June 17, 1994) (Bench decision)

The employe was laid off in April of 1992 from her full-time job with defendant Moseleys. She continued to work part-time for Orange Tree until she quit on May 28, 1992, to relocate to another state. She contended she quit because continued employment was economically unfeasible as defined in sec. 108.04 (7)(k), Stats., and ILHR 132.03 (3)(b), Wis. Admin. Code.

The ALJ applied the administrative code formula and held that the employe's quitting was not under the provision of economically unfeasible or any other exception which would allow benefits. The commission affirmed.

Held: Affirmed.

Josephine M. Berelc v. LIRC, No. 91-CV-011-788 (Wis. Cir. Ct. Milwaukee County October 1, 1992)

full text available here

The commission issued its decision on August 5, 1991 affirming the ALJ's decision. Plaintiff, on a single sheet of paper dated August 26, 1991, set forth an "Appeal ('Rights') Petition", setting forth her name and against the commission. The document was filed with the Milwaukee County Clerk of Courts' Office on August 26, 1992. The document was subsequently served on the commission by sheriff's service on January 6, 1992.

The commission moved to dismiss on the grounds that the Court lacked jurisdiction to consider the merits of the case because plaintiff failed to follow statutory requirements. She failed to serve a summons, failed to serve a complaint, failed to name her employer as an adverse party, failed to set forth a cause of action, and failed to timely serve the commission.

Held: Motion to dismiss granted.

Kristin L. Berry v. LIRC, No. 94-CV-004436 (Wis. Cir. Ct. Milwaukee County August 8, 1994)

The plaintiff, employe commenced an action for judicial review. She neglected to name her employer as a party defendant within the 30-day appeal period. The commission moved to dismiss.

Held: Motion granted.

BFI River City Refuse Removal, Inc. v. LIRC and Brian D. Rude, No. 92-CV-737 (Wis. Cir. Ct. Eau Claire County March 29, 1993)  (Bench decision)

The employe worked about three years as a route driver/helper as a member of a two-man team collecting residential garbage for the plaintiff-employer, a refuse removal business. He also worked alone on Saturdays on a commercial route. He was discharged on January 27, 1992.

The employe and his partner serviced 425 to 450 customers daily on residential routes. Each morning they were provided with a computerized route sheet listing all the customers on the particular route plus a cover sheet listing about 15 to 20 changes each day.

During the first year and one-half of his employment the employe had the same partner and he received no written warnings for missing trash pickups on the residential routes they serviced. During the last half of his employment he had 10 or 11 different partners and received a number of written warnings for missing residential customers on the route or for picking up trash from customers who had cancelled the employer's service. From April 3, 1991 until January 6, 1992, he received no written warnings. On January 6 he received a written warning because there were again "misses." He was expected to have no more than five missed customers a month.

On the morning of January 25, 1992, the employe attempted to service a commercial customer operating a restaurant. Because the lid on the compactor unit was frozen shut and the contents were frozen to the unit, he was unable to dump the trash. He noted his inability to service the account on his route sheet and sought the advice of another commercial driver on what to do. He was advised there was nothing that could be done, that the customer would be serviced on Monday, and that his truck did not have to be fueled when the tank was three-fourths full. Later that afternoon another driver was dispatched to service the commercial customer.

Because the employe had not serviced the commercial account, because he had not fueled the truck, because he had not cleaned the truck to the employer's satisfaction and because of the prior warnings, he was discharged.

The commission reversed the ALJ and allowed benefits on the grounds the employe was discharged but not for misconduct connected with his employment. His failure to service the commercial account was an error in judgment and his other failures were the result of negligence. Such negligence was not so gross as to demonstrate equal culpability and was not wilful or intentional.

Held: Affirmed. The findings of fact which are not in dispute, support the commission's conclusion. The court would also have confirmed the commission's conclusion if it had ruled the other way.

Birchwood Meat & Provision Inc. v. LIRC and Anthony A. Souter, No. 91-CV-850 (Wis. Cir. Ct. Kenosha County December 27, 1991) 

The employe lived in Racine and commuted to the employer's meat packing establishment in Kenosha. He worked as a packer in the refrigerated area until he sustained frostbite to his fingers in July, 1990. He was then under doctor's orders to work in a heated area. The employer assigned such work in a heated area until November 6, 1990. The employe then refused to return to work in the refrigerated area as requested and was informed he should not return to work until he had a doctor's excuse. He was absent with notice for several days but obtained a doctor's excuse which recommended he avoid handling frozen packages. When he returned to work on November 9 he was assigned work where there was no heat. He was then absent due to problems with his fingers for which he obtained treatment and medical excuses for his absence. He was discharged on November 19, 1990, when he reported for work and indicated he could only work in a warm place.

The employer had a progressive disciplinary system. It was contended that because of the employe's extremely poor attendance record, he was discharged for misconduct. He did have numerous verbal and written warnings for attendance violations. However, he received a pay raise, a promotion and congratulations for doing a good job during the month prior to his frostbite injury.

The ALJ held the employe was discharged but not for misconduct because the employe's inability to work in the area provided was due to circumstances beyond his control and was not the result of an intentional or wilful disregard of the employer's interests. The commission agreed.

Held: Affirmed. The employe was absent and tardy many times but he was kept on as an employe and received a promotion in June, 1990. iHis problems began when he suffered frostbite to his fingers. The ALJ's findings are supported by credible and substantial evidence and it is immaterial if the court would have found the same way. The commission did not act without or in excess of their powers. There are facts in the record which would support the employer's view as to the cause of discharge but there are also facts supporting the cause of discharge found by the ALJ who observed the witnesses and noted their demeanor and credibility. There is credible and substantial evidence to support the finding and the conclusion reached.

Ronald J. Blachowiak v. LIRC and Patz Sales, Inc., No. 91-CV-370 (Wis. Cir. Ct. Washington County December 30, 1991) (Bench decision)

full text available here

The employe worked about four years as a quality control inspector for the employer, a concern engaged in the manufacture of farm equipment. He was discharged.

The employe was to prepare a report for the quality control supervisor. He used the supervisor's personal files for doing so without the supervisor's permission. The use of such file was one of two reasons for his discharge. The ALJ and the commission agreed that his unauthorized use of the supervisor's personal records was at most poor judgment.

One of the employe's duties was to complete inspection reports after inspecting parts produced by the production department. He was requested to and complied with the request of the second-shift foreman in charge of production to rewrite an inspection report completed by another inspector, knowing what he did was wrong. The initial report blamed the second-shift foreman for a defect in a part. The new report prepared by the employe found the defect was caused by a machine operator who used the wrong bending dies. The new report would become part of the machine operator's employment record. The employe, without inspecting the defective part or without further investigation, prepared the new report using the prior inspector's initials instead of his own.

The ALJ was reversed by the commission. The commission held that the employe's altering a co-worker's report without investigating and which shifted the fault for the defect, without informing his own supervisor of what he was doing, evinced a wilful, wanton and substantial disregard of the employer's interests and of the standards of behavior which the employer had the right to expect of him. The employe also violated the employer's rule concerning falsification of corporate documents.

After the employe's action for judicial review was commenced, his attorney submitted written interrogatories under sec. 804.08, Stats., and requests for admission under sec. 804.11, Stats., to the commission. The circuit court, after briefs were submitted, in a bench decision, granted the commission's Motion for a Protective Order, as provided by sec. 804.01 (3), Stats.

Held: Affirmed (in a later bench decision). The integrity of the quality control reports is important to the company and the use of another inspector's initials is also a serious matter.

Irene K. Boldt and Barbara Van Eperen v. LIRC and Fox Valley Vocational, Technical and Adult Education District, No. 91-CV-415 (Wis. Cir. Ct. Outagamie County December 13, 1992) 

The plaintiffs (employes) worked part-time as food service Worker's in the employer's school. Prior to the summer of 1987 they worked year-round.

Instead of a traditional academic school year of two 18-week semesters, the employer has a perpetual entry and graduation system where some programs operate year-round, some operate during 16 three-week periods and some operate during four 12-week quarters. The school is closed for two weeks during the Christmas-New Year period, one week following Easter Sunday, and one week between the summer and fall terms.

The employes were denied benefits at all administrative levels in weeks 28 or 30 of 1987 through week 36 of 1987 on the ground that under sec. 108.04 (17)(b), Stats., they had reasonable assurance that they would perform similar services for the employer in the next school year. Both employes here were laid off during the summer months due to a decline in the services offered by the employer. (In prior summers all employes shared the food service work available whereas in 1987 the least senior employes, such as the employes here, were laid off with a definite return to work date.)

These cases plus another were consolidated and remanded by the court in the first action for judicial review. (See Van Eperen et al in 1986-1990 Court Digest.) The remand was for additional evidence on what is an academic year or term as it relates to the employer's operation. The commission remanded the case for a new hearing and decision by the ALJ, whose decision again denied benefits during their unemployment. During the summer months student enrollment is only 10 to 12 percent of the total enrollment for a calendar year even though the employer holds itself out to the public as a year-round educational institution. Some activities increase during the summer months such as preventative and general maintenance jobs, counseling, testing, preenrollment and preregistration, all in preparation for the fall term when the employer again operates in "full gear." Because the employer's operation is not significantly different from the traditional academic year and the employes had reasonable assurance, they are ineligible for benefits.

The commission affirmed the ALJ's decision pointing out in its MEMORANDUM OPINION that the statute is applicable contrary to the employes' contention that it did not apply to year-round employes. Their periods of unemployment were not solely within the employer's control during a between-terms period and the statute makes no year-round employe exception.

Held: Affirmed. The court considers the issue to be whether the unemployment occurred between two successive academic years or terms (as defined by the court in DILHR v. LIRC, 161 Wis. 2d 231, 248-50, 467 N.W.2d 545 (1991)). The ALJ's findings are supported by credible and substantial evidence. The conclusion is supported by a construction of the statute which is entitled to judicial deference and reflects a reasoned analysis of Wisconsin precedent which, though not exact, is similiar in nature.

Oscar J. Boldt Construction Company v. LIRC, Harold O. Schroeder, Jack R. Mayer, Thomas L. Thorn, Richard O. Ratzman, Richard R. Buelow, Scott T. Mullen and Don C. Zielke, No. 91-CV-1088 (Wis. Cir. Ct. Outagamie County June 25, 1992)

Millwright Local 1056 is affiliated with the Fox Valley District Council of the United Brotherhood of Carpenters and Joiners. The District Council enacted a by-law change which gave the council's business manager the sole authority to negotiate collective bargaining agreements, and effectively took away local's right to have a personal representative on the Council's collective bargaining team. Local 1056 disputed the legality of this by-law change and legality of the method used to enact it. This dispute went into federal court and had not been resolved there at the time of the U.C. hearing.

In the meantime, the collective bargaining agreement between Oscar J. Boldt Construction Company and the Council (to which Local 1056 had been signatory) was due to expire on May 31, 1990. Prior to the expiration of this agreement Local 1056 had written to Boldt and apprised it of its dispute with the Council, and asked to meet with it to negotiate a new contract. Boldt ignored this letter. On May 26, 1990, Local 1056 received notice from the Council that a new agreement had been reached between it and the Associated General Contractors, effective June 1, 1990. The AGC acts as bargaining representative for numerous construction employers, but not all of them. Local 1056 had previously been informed by the Council that Boldt was not conducting its negotiations through AGC.

At a May 29, 1990 meeting, Local 1056 members voted to strike Boldt effective June 1, 1990, due to the expiration of the old collective bargaining agreement. Approximately two months prior to this meeting, the local had established a legal committee to investigate the legality of the Council's actions, and later the legality of a strike against Boldt. The local's attorney had advised that such a strike would be legal. The seven employes, together with numerous other millwrights, struck Boldt on Friday, June 1, 1990. However, they all returned to work after only one day, when the Carpenters International Office advised Local 1056 that they considered the strike to be violative of the International's working agreement and threatened to pull the local's union charter. On June 6, 1990, Boldt discharged the seven millwrights for participating in the strike, even though they had returned to work.

After a hearing at which all the employes appeared, but the employer did not, the ALJ found that the employes had been discharged but not for misconduct connected with their employment. The commission affirmed, modifying to clarify that it believed the employes had acted as reasonable persons by participating in the one-day strike, in accordance with the objective test of what a reasonable person would have reasonably believed under the circumstances. Wehr Steel Co. v. DILHR, 106 Wis. 2d 111, 315 N.W.2d 357 (1982).

Held: Remanded for further hearing. There was credible evidence supporting the commission's factual inferences concerning the reasons the seven employes participated in the one-day strike. However, the court declined to affirm the commission's decision because it did not believe the record was "clear," or that there was a "sharp focus" with regard to what information each employe had in mind and reasonably relied upon in reaching the conclusion that the strike would be legal. The court remanded the matter for an additional fact-finding hearing wherein both parties could more fully focus on the legal issues.

(Reversed in unpublished per curiam decision in case 92-1916, 174 Wis. 2d 601, 501 N.W.2d 470 (Ct. App. 1993).

Janet M. Boyles v. LIRC and Energy Family Credit Union, No. 92-CV-010103 (Wis. Cir. Ct. Milwaukee County March 17, 1993) 

The employe, with 20 years of experience in the credit union business, worked for the employer for just over seven months. During the employment the employer repeatedly warned the plaintiff about improving her attitude toward customers and staff. The employer's president testified to the number of complaints and warnings. The plaintiff's three-month probation was extended by three months. She was given permanent status and a salary increase at that time, but was also given some relationship improvement instructions and training directives. About one month later she was discharged after an incident with a customer and another employe. The commission, reversing the ALJ, held she was discharged for misconduct connected with her employment.

Held: Affirmed: The record contains evidence to support the commission's findings that the employe had a negative attitude toward customers and co-Worker's and that she made no improvement despite warnings. Placing her on permanent status did not negate those complaints and warnings.

(Affirmed in unpublished per curiam court of appeals decision No. 93-1553, 184 Wis. 2d 402 (1994 Wis. App., Lexis 346 Ct. App 1994)).

Ramona L. Brandenburg v. Manpower, Inc. and LIRC, No. 93-CV-257 (Wis. Cir. Ct. Rock County October 14, 1994)

The employe worked for the employer, a temporary help agency. She began her last placement, doing light assembly work, in August 1993. Her last day of work was October 11, 1993. The employer's industrial services manager telephoned the employe at home that evening and advised her that the assignment was finished. The employe reported to the employer's office the next day to turn in a security card. After the office services manager advised the employe that no office jobs or permanent office jobs were available, the employe advised her that she was quitting. The commission concluded that the employe was not eligible for unemployment benefits because she had voluntarily terminated her employment and not for any exception to that disqualification. She failed to also check with the industrial services manager for additional assignments, even though her most recent assignment had been from industrial services.

Held: Confirmed. The record contains relevant, credible and probative evidence to support a finding that the employe quit her employment. There is no evidence that it was a quitting in the meaning of any statutory exceptions. A finding of no quitting might also be reached, but the court cannot substitute its judgment for that of the commission.

Robert L. Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991) 

The employe claimed and received benefits for various periods from November, 1982 through November, 1988 based on his work for the employer. The commission held that the employe had received $22,716 in benefits to which he was not entitled because he owned or controlled one-fourth or more of the ownership interest of the employer. The commission was served with a summons and complaint seeking judicial review of the commission decision. The commission was the only party named as a defendant. The commission moved to dismiss because the employer had not been joined as a party defendant.

The plaintiff contested the commission's motion. The plaintiff also moved to strike all or parts of the brief filed by the commission in support of its motion because it contained citations to unpublished circuit court opinions. The circuit court denied the motion to strike the brief and granted the motion to dismiss.

Held: The Supreme Court Rule prohibiting citation of unpublished opinions refers to court of appeals opinions, not circuit court decisions. Circuit court decisions here were not considered as binding authority by the circuit court. It is up to the legislature or the supreme court to deal with citation of those cases to prevent any unfairness resulting from their limited availability.

The failure to comply with statutory procedural requirements more accurately affects the court's competency to proceed rather than its UC Digest jurisdiction. In unemployment compensation cases this includes a requirement that the adverse party be joined as a defendant. The method of calculating an employer's contributions to the unemployment fund results in an adverse impact on an employer's interests whenever a benefit ruling is favorable to an employe. When benefits paid out are deemed excessive, an adverse relationship between the employer and employe is unavoidably drawn. The statutory tax mechanism clearly pits the employer's interests against the employe's. The statutory language contemplates an entity beyond LIRC as an adverse party.

The plaintiff's argument, that the employer's decision not to contest the action makes the employer not adverse, results in the plaintiff speaking for the non-party. This decision should be obtained by making the employer a party, not by the self-serving interests of one who is statutorily adverse.

Finally, that the plaintiff is also the president of the employer does not cure the joinder defect. This is not a hypertechnical deficiency, but rather goes to the accuracy and integrity of the administrative review process.

Affirmed. 166 Wis. 2d 623, 480 N.W.2d 494 (1992).

Robert L. Brandt v. LIRC, 166 Wis. 2d 623, 480 N.W.2d 494 (1992) 

The employe claimed and received benefits for various periods from November, 1982 through November, 1988 based on his work for the employer. The commission held that the employe had received $22,716 in benefits to which he was not entitled because he owned or controlled one-fourth or more of the ownership interest of the employer. The commission was served with a summons and complaint seeking judicial review of the commission decision, but the commission was the only party named as a defendant in the summons and complaint. The commission moved to dismiss because the employer was not joined as a party defendant.

The plaintiff contested the commission's motion. The plaintiff also moved to strike all or parts of the brief filed by the commission in support of its motion because it contained citations to unpublished circuit court opinions. The circuit court denied the motion to strike the brief and granted the motion to dismiss.

The court of appeals (160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991) 9399) held that the rule prohibiting citation of unpublished opinions refers to court of appeals opinions, not circuit court decisions. The legislature or the supreme court must deal with citation of those cases to prevent any unfairness resulting from their limited availability.

The court of appeals also held that the failure to comply with statutory procedural requirements affects the court's competency to proceed rather than its UC Digest jurisdiction. In unemployment compensation cases the method of calculating an employer's contributions to the unemployment fund results in an adverse impact on an employer's interest whenever a benefit ruling is favorable to an employe. The failure to join the employer here was not a hypertechnical deficiency but goes to the integrity of the administrative review process.

Held: An employer is an adverse party in unemployment compensation judicial review proceedings and must be named as a party defendant in the summons and complaint. The employe failed to join the employer, so the case was properly dismissed. The circuit court lacked competency to proceed. Employer taxes fund employe benefits. Every benefit claim thus creates an adverse interest because of the possibility of an increased tax level on the employer. Statutory requirements must be strictly complied with. Appeal dismissed.

Refugio S. Bribiesca v. LIRC and Madison Mushrooms, Inc., No. 91-CV-3076 (Wis. Cir. Ct. Dane County May 8, 1992) 

full text available here

The employe, a citizen of Mexico, entered the U.S. illegally in 1979, with his wife, who had the necessary documents including a birth certificate, allowing her to enter the U.S. legally. In July of 1981, his wife submitted alternate proof concerning the employe to the Immigration and Naturalization Service (INS) and requested an appointment for the employe to obtain authorization to enter and remain in the U.S. legally.

In December of 1981 the employe returned to Mexico because of his mother's ill health. He notified the American Embassy in Mexico that he had returned to Mexico. An appointment was established for him, as requested by his wife, but the employe did not keep the appointment because he had not received the notice sent to his prior Wisconsin address.

The employe reentered the U.S. in 1983. He worked in Chicago before coming to Madison where he worked for co-defendant employer in 1984. He lost his job and filed claim for benefits, which were paid. He subsequently obtained other employment as well as unemployment benefits when the subsequent employment ended.

On October 22, 1985, the employe went to the INS office in Milwaukee to get admitted legally. He was employment authorized until October 21, 1986, but required to depart the U.S. on or before October 21, 1986, with one-week advance notice to INS of departure arrangements. He was subsequently granted permanent resident alien status by INS on October 9, 1986.

In December of 1989, the employe again filed a claim for unemployment benefits. After an investigation which included a report from INS, the deputy issued an initial determination holding, in part, that he was first employment authorized on October 22, 1985, so that he was ineligible for benefits based on employment before that date and that he was overpaid benefits.

The ALJ affirmed the initial determination, as did the commission after modification.

Held: Affirmed. The employe concedes that at the time he performed services for the employer he was neither lawfully admitted for permanent residence at the time such services were performed, or lawfully present for the purpose of performing such services, pursuant to sec. 108.04 (18)(a), Stats. He, contends however, that at the time he performed the services he was permanently residing in the U.S. under color of law--PRUCOL.

Under sec. 108.04 (18)(a), Stats., the focus is on the alien's status at the time such services were performed, as confirmed by Pickering v. LIRC, 156 Wis. 2d 361, 368, 456 N.W.2d 874 (Ct. App. 1990). The employe contends that by policy--INS Operations Instructions 242.1a (23)--and case law from other jurisdictions with similar statutes, INS's failure to deport him is sufficient to show INS's intent to authorize his continued residence, thereby conferring PRUCOL status. LIRC, referring to the Unemployment Insurance Program letter issued by the Department of Labor, contended that PRUCOL status may only be conferred when the INS provides official assurance in some written form to the individual that deportation is not planned.

It is unnecessary for the court to consider either position because, under the case law cited by the employe, he does not qualify as PRUCOL.

As to PRUCOL and the court's holding in Holley v. Lavine, 553 F. 2d 845 (2d Cir. 1977) cert denied, 435 U.S. 947 (1978):

The clear focus is on the actions taken by the INS, whether by virtue of power or of right. PRUCOL does not arise because of the circumstances of the alien. It derives from the response of INS to those circumstances. Gillar, supra at 136. What is implicit in the concept is a decision, whether reflected by acts of omission or commission, to permit the alien to reside or continue to reside in this country. Fundamental to the notion of a decision is knowledge of the alien's presence in the country. There can be no decision to permit continued presence without knowledge of that presence in the first instance.

The cases (set forth) show that to be PRUCOL INS must have known of the presence and acquiesced in it. INS must know of the presence before it can acquiesce. Here, there is no evidence that INS was aware after 1981 that the employe had returned to the U.S., until October of 1985.

The policy in INS Operations Instructions 242.1a (23) is also of no assistance to the employe. Such policy is to not deport an alien under certain circumstances. "Such a policy has no application to a person who is not in the country because there is no need or ability to deport."

The public policy set forth in sec. 108.01, Stats., cannot be used to supersede, alter or modify the specific provisions of the Act, and other policy arguments offered are better addressed to the legislature.

Larry D. Brico v. LIRC and Anacomp, Inc., No. 90-CV-352 (Wis. Cir. Ct. Washington County March 27, 1991) 

The employe worked over 13 years in several capacities for the employer, a manufacturer of microfilm and microfiche printers, until he was discharged on February 9, 1990.

The employe had complained that operating a degreasing machine gave him a headache. He was told he should obtain a doctor's excuse to be taken off the machine, but he never did so. On February 5, 1990, he told a co-worker that if he was assigned to operate the degreasing machine, which he disliked doing, he would run the machine dry so he would not have to do it. He was assigned to operate the machine and ran it dry although, if he had followed directions, the machine would not have run dry. The result was about half an hour of down time. He was subsequently discharged even though he contended he did not intentionally run the machine dry.

Benefits were denied at all administrative levels on the ground that the employe was discharged for misconduct connected with his employment. The employe submitted additional information with his petition for review which the commission did not consider.

Held: Affirmed. There is credible and substantial evidence in the record and reasonable inferences to support the commission's finding that the employe's actions in running the degreaser dry were deliberate. Such findings support the commission's conclusion that his actions were an intentional and substantial disregard of the employer's interests amounting to misconduct connected with his employment.

The commission has statutory authority to remand a case for additional testimony. The commission did not abuse its discretion in refusing to order the taking of additional evidence based on the undated statement of an electrician that he had replaced wires on the degreaser which was not working properly. It is not known when this occurred and there is no indication that such statement was newly-discovered evidence.

Gerald Brogley & Helen Brogley, d/b/a Tri-State Auto Auction v. DILHR & LIRC, No. 93-CV-0063 (Wis. Cir. Ct. Grant County April 14, 1993) (Bench decision)

On January 15, 1993, LIRC affirmed an administrative law judge's decision upholding the department's assessment of additional contribution liability against the plaintiff on the basis that certain auction callers were employes of plaintiff. On February 11, 1993, plaintiff filed a summons and complaint which was served on LIRC on February 12. The summons and complaint named only LIRC as a defendant and omitted any reference to the department. The complaint erroneously alleged that the initial determination had been issued by LIRC, and had been affirmed by an administrative law judge of LIRC prior to the LIRC decision of January 15.

On February 16, 1993, plaintiff filed an amended summons and complaint with the clerk of circuit court, which was served on LIRC on February 17. The amended summons and complaint named the department as an additional defendant.

Plaintiff's deadline for filing and serving a summons and complaint for judicial review under sec. 102.23, Stats., was February 16, 1993, as February 14 (the 30th day after LIRC's decision) was Sunday and February 15 was a legal holiday.

LIRC and the department moved to dismiss the action on the basis that the department, as the agency to whom plaintiff was liable, was a necessary adverse party, and that a summons and complaint properly joining the department as a defendant had not been served upon LIRC within the statutory time limit set forth in sec. 102.23 (1)(a), Stats.

Held: In a bench decision, the circuit court ruled that Brandt v. LIRC, 166 Wis. 2d 623, 480 N.W.2d 494 (1992) compelled the conclusion that the department was a necessary adverse party, and dismissed the action because the department had not been timely joined as a defendent.

Brown County v. LIRC and Marge Gajewski, No. 90-CV-1490 (Wis. Cir. Ct. Brown County March 15, 1991) (Bench Decision) 

The employer discharged the employe after discovering that she had consumed a can of beer at work. Immediately after the discharge, she sought treatment from her physician, who diagnosed alcohol abuse and referred her to an inpatient treatment center for alcoholics. Treatment lasted for one month, after which the physician completed a UCB-474 with an attachment that asked, among other things, whether the employe was unable to abstain from or control her consumption of alcohol. The physician did not answer this question. A written report from the counselor who treated the employe stated that she had been terminated from her job as a direct result of her alcoholism.

The commission affirmed the appeal tribunal's findings that the medical evidence, together with the employe's testimony, led to the credible inference that the employe was an alcoholic who had lost the ability to control her consumption of alcohol on the date she drank beer at work. The employer argued that the medical evidence was insufficient to support this inference.

Held: Remanded. The court accepts the diagnosis of "alcohol abuse" as an equivalent term for "alcoholism." However, in accordance with Wisconsin case law concerning when expert testimony is required, expert medical opinion from a physician was needed to answer the question whether the employe was unable to abstain from the consumption of alcohol. The physician failed to answer this question on the form provided for this purpose. Therefore, credible and substantial evidence was lacking to uphold the commission's finding of fact that the employe was incapable of controlling her consumption of alcohol. Neither the opinion of the treatment counselor nor the employe's testimony constituted competent evidence for answering this factual question. Where there is an inability to control the consumption of alcohol, drinking on the job does not constitute misconduct. The court remanded the case to the commission for the taking of further evidence, specifically expert medical evidence concerning the question whether the employe was able to control her consumption of alcohol on the date in question.

Carey S. Brown v. LIRC and Findley Adhesives, Inc., No. 93-CF-011077 (Wis. Cir. Ct. Milwaukee County April 15, 1994)

The plaintiff-employe, representing himself, commenced an action for judicial review of commission decision. That decision reversed the ALJ's decision and denied benefits on the ground that the employe's gross negligence constituted misconduct connected with his employment.

The court established a briefing schedule. The employe did not file a brief. The commission moved to dismiss the employe's action for failure to prosecute under sec. 805.03, Stats. The motion was scheduled before the court but the employe did not appear.

Held: Motion to dismiss granted.

Brown County v. LIRC and Lillian M. Wheelock, No. 94-CV-718 (Wis. Cir. Ct. Brown County November 30, 1994)

Employe was a psychiatric social worker. She was discharged for tardiness returning from her lunch break and for alleged falsification of records, specifically the inaccurate completion of forms showing when she provided services to the employer's clients. LID found misconduct, but ALJ reversed and allowed. LIRC affirmed, agreeing with ALJ that it was not proven employe was actually tardy on the last occasions that provoked her discharge, and that even if the forms were completed inaccurately the employe misunderstood how they were to be completed and did not intend to falsify them.

Held: Affirmed. The employer failed to demonstrate the employe was tardy on the occasions at issue, and it failed to establish that, as to any prior occasions of tardiness, she had been warned that they could result in discipline. With respect to the alleged falsification of records, relevant, credible and probative evidence supports the finding that the employe lacked intent to falsify. Other grounds for discharge relied on by the employer before the agency are treated as having been abandoned by the employer because it did not argue them in its brief to the court.

Dwayne A. Brown v. Federal Express Corp. and LIRC., No. 92-CV-014431 (Wis. Cir. Ct. Walworth County June 21, 1993) 

The employe worked for approximately seven years, first shift, as a cargo handler for Federal Express. He had been employed in Los Angeles, but in October 1991, he requested a transfer to Wisconsin. The request was granted on the condition that the employe accept a third-shift position at the Federal Express Milwaukee Ramp.

The employe accepted and began his duties on the third shift on October 14, 1991. However, after completing that shift he did not report back to work the next day or thereafter. He admitted himself into Milwaukee Psychiatric Hospital on October 15, 1991, due to problems with bipolar disorder, a condition with which he is afflicted. He attributed the onset of a manic phase of this illness to the fact that he had worked the third shift, and had to drive without much rest from California to Wisconsin. Since December 1990, Federal Express had known the employe suffered from bipolar disorder, and had been supportive and willing to accommodate his needs. When the employe telephoned his Milwaukee supervisor and indicated he was in the hospital and would probably be back to work in about two weeks, the supervisor accepted this and told the employe to just get better. The employe was released from the hospital on October 25, 1991.

Subsequently, the employe spoke again on the phone with his supervisor and indicated that he could not work the third shift. The supervisor replied that they might be able to work something out. Nevertheless, the employe submitted a written resignation on December 5, 1991, which simply stated that he was resigning effective that day for personal reasons. The ALJ found that the employe had not exhausted reasonable alternatives to quitting, and the commission affirmed.

Held: Affirmed. The employe did not demonstrate he was unable to do his work, especially considering the employer's willingness to accommodate the employe's needs. Also, the employe had not exhausted reasonable alternatives to quitting, and his explanation for quitting was personal reasons.

Philip S. Buckner v. LIRC and Sub Zero Freezer Company Inc., No. 90-CV-4889 (Wis. Cir. Ct. Dane County August 16, 1991) 

The employe worked as a material handler for about eight years. As a material handler he had a regular supervisor (Mr. B) but was also to follow directives from other supervisory personnel. In addition, under the labor agreement, employes are to do as told and file a grievance later if there is a problem.

The employe had the use of a forklift to move heavy loads between 6:00 and 6:30 a.m., the rest of the time he used a pump jack. He had received instructions to control his temper and to take disputes with co-Worker's and other supervisory personnel to Mr. B.

On the employe's last day of work he was told by Mr. C, a supervisor, that Mr. C would like to have materials moved that Mr. C had already asked the employe to move three or four days in a row. The employe told Mr. C that he had no right to talk to the employe that way and that he would move the boxes later that day. Mr. C told the employe to forget it and Mr. C would have someone else move the boxes. Both men left the immediate area. About five minutes later the employe saw Mr. C, jump off the forklift he was operating and angrily approached Mr. C, yelling and shouting in Mr. C's face. The employe told Mr. C that he never wanted to be spoken to in that manner again and that Mr. C could write the employe up or take him upstairs to meet with Mr. B. The employe was later discharged for insubordination. Benefits were denied by the initial determination, allowed by the ALJ and denied by LIRC.

Held: Reversed and benefits allowed. Although the employe contended that LIRC's findings of fact were not supported by credible and substantial evidence (there were the employe's version, Mr. C's version, and a witness' version) the findings of fact are supported. The employe also alleged he was denied due process because his attorney's defense focused on whether he actually threatened Mr. C and not on the insubordination issue. He was not denied due process because his discharge notice stated it was for insubordination, he reported on his initial application for benefits that he was discharged for insubordination, and the initial determination referred to insubordination. It was also the issue defined at the hearing.

The commission's ruling that the employe's actions constituted insubordination and therefore misconduct is in error. Insubordination and misconduct are not interchangeable. The question should have been whether the employe's actions constituted a wilful or wanton disregard of the employer's interests. Insubordination is not misconduct as a matter of law but under the case law may or may not be misconduct.

(Reversed in unpublished court of appeals per curiam decision in Case No. 91-2486, 170 Wis. 2d 343, 492 N.W.2d 188 (Ct. App. 1992)).

Leon Bunker v. LIRC, Loyal Public School and Benton Public School, No. 94-CV-102 (Wis. Cir. Ct. Oconto County December 8, 1994)

The employe worked for the Loyal School District from 1988 through May 1991. He accepted a contract with the Loyal School District for the 1991-1992 school year. In June 1991 the employe applied for, was offered and accepted a position with the Peshtigo School District for the 1991-1992 school year. The Peshtigo School District did not offer the employe a contract for the 1992-1993 school year. The employe interviewed for a job with the Fort Atkinson School District in June 1992. He applied for and began receiving unemployment benefits for the week ending June 20, 1992. On June 18, 1992 the Fort Atkinson School district advised the employe that he was their first choice if he wanted the job. He did not commit himself. He received a contract from Fort Atkinson on June 29, 1992 and rejected that offer on July 1, 1992. The employe received and accepted a contract from the Chilton School District on July 21, 1992. The commission affirmed a decision of the department which concluded that the employe had reasonable assurance of employment for the 1992-1993 school year as of the week ending June 20, 1992 and therefore was ineligible for unemployment benefits beginning in that week.

Held: Affirmed. The job offered to the employe for the following school year was reasonably similar to his work during the prior school year. The only item that the employe contends was not reasonably similar was the travel distance. The employe applied for the Fort Atkinson job and it was offered to him. He knew he could have a job for the next school year. To allow him to reject it and get benefits would be a subsidized summer vacation. Nothing in the case law or statutes indicates that travel distance to a new job is a factor to be used in determining reasonable similarity. This is not an employer-imposed condition. It is a personal circumstance. The commission correctly determined that travel distance is not a condition of the offered work.

Butler Auto Exchange, Inc. v. LIRC, DILHR, Dennis C. Mohr and Randolph G. Gripp, A/K/A Randolph J. Gripp, Case No. 91-CV-1167 (Wis. Cir. Ct. Waukesha County November 22, 1991)

A DILHR audit revealed that certain persons locating cars for sale for a wholesale purchaser and seller of used vehicles to dealers were statutory employes of plaintiff under 108.02 (12), Stats. Plaintiff had a license to sell autos between dealers. Plaintiff entered into a written agreement with each of the auto locators whereby they would receive a percentage of the net profits and/or losses on cars they found. They did not realize any profit from the employer's other sales. The contract further provided that the plaintiff had the sole discretion of whether to accept or reject an automobile located by the locator. The Worker's purchased cars through the license issued to the plaintiff, as they did not hold their own license. The title would be in the plaintiff's name. The Worker's used business cards with plaintiff's name on them. The money used to purchase cars was the plaintiff's money. The plaintiff rented the office and area where the cars were ultimately sold. Plaintiff kept all records and books with regard to the cars located and ultimately sold by plaintiff.

An initial determination was issued finding that plaintiff owed unemployment compensation tax contributions for the two auto locators. The appeal tribunal reversed the department's initial determination and held that the two Worker's were involved in a joint venture with the plaintiff and that therefore they did not perform services on behalf of the plaintiff.

The department petitioned for review. LIRC reversed the appeal tribunal decision as a matter of law. LIRC's decision was detailed as to the nonexistence of a joint venture and with respect to the employe status of the two Worker's under sec. 108.02 (12), Stats. LIRC found that the element necessary for a joint venture between the two Worker's and the corporation did not exist. LIRC analyzed the joint venture from a general interest in the UC Digest of the business. LIRC specifically found:

1. Neither worker had a proprietary interest in an automobile wholesaling business;

2. Neither derived or was entitled to derive a profit from the automobile wholesaling business; and

3. Neither had a right to control the operating policy of the automobile wholesaling business.

Using the employe versus independent contractor analysis LIRC found that:

1. Butler exercised control through its sole control of the dealership license;

2. The Worker's were economically dependent upon their relationship with Butler for the existence of the automobile locating and sale business; and

3. Neither worker had a proprietary interest in the automobiles which they located on behalf of the plaintiff Butler Auto.

Held: Reversed and the appeal tribunal decision is reinstated. The court agrees with the appeal tribunal that the elements of the joint venture are governed by the specific UC Digest of the venture and not as LIRC had found by the total business endeavors of the joint venture. Therefore, LIRC's analysis was incorrect as a matter of law.

(Reversed in unpublished per curiam decision, 169 Wis. 2d 748, 488 N.W.2d 929 (Ct. App. 1992).

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

Jesse C. Carter v. Boston Store and LIRC, No. 93-CV-011516 (Wis. Cir. Ct. Milwaukee County July 29, 1994) 

The employe began working for the employer as a sales associate in November 1990. On February 17, 1992, the employe did not arrive on the sales floor until about four minutes after he punched in to work. He received a written warning for that incident and was placed on 90 days probation. The employe began a medical leave in April 1992. On June 24, 1992 the employe met with the store manager to discuss his participation in a management training program. He was told that one reason he was not in that program was that he was on a six-month probation for the February 1992 time theft incident.

On July 10, 1992, the employe returned to work from the medical leave. He started work at 9 a.m. At 11:50 a.m. he took a break. He left his sales area and arrived back in that area at 12:25 p.m. Shortly thereafter he was told to report to the store manager's office and after a short discussion he was discharged. The commission, reversing a decision of an administrative law judge, concluded that the employe had been discharged for misconduct and was ineligible for unemployment benefits.

Held: Affirmed. The scope of judicial review of decisions of the commission is limited. The court cannot provide the petitioner with a de novo review. A reasonable person could conclude that the employe's two time-theft violations were wilful and intentional. As such they meet the definition of misconduct. The commission's decision to reach a different legal conclusion than that of the administrative law judge is well within its reviewing powers. In doing so it did not apply a strict liability standard. The record in this case contains evidence to support the commission's findings of fact. It is the commission's job to select a version of disputed testimony.

Steven J. Champion v. LIRC and Millis Transfer, Inc., No. 91-CV-1223 (Wis. Cir. Ct. Brown County May 14, 1991) 

The employe worked as an over-the-road truck driver for the employer for almost two years. In August, 1989, the employe received a one-week suspension for threatening a worker at a customer's business. He was told that another incident could result in discharge.

In March, 1990, after the employe had completed a trip to Baltimore, he telephoned the employer's dispatcher for a return load. He was told he was to lay over for two days. The employe was angry over the loss of income and hung up. He then called the dispatch supervisor, told him he wouldn't take the assigned load and that if he could get a hold of him he would tear his "cheap fucking head off." The employe did take the assigned load. After returning to Wisconsin, he was discharged.

Held: The commission's decision finding misconduct is set aside. The distance between the parties precluded any actual physical violence. The vulgarity used, though not desirable, is a fact of today's life.

(Summarily reversed in per curiam opinion Court of Appeals case No. 91-1493-FT, 165 Wis. 2d 514, 478 N.W.2d 596 (Ct. App. 1991), dated November 12, 1991, 9412 (full decision set forth) Petition to Review denied 166 Wis. 2d Lxxi.)

Patricia A. Charette v. State of Wisconsin, LIRC and Benevolent Corp. Cedar Campuses, No. 94-CV-92 (Wis. Cir. Ct. Washington County October 11, 1994) 

The employe worked as a receptionist for approximately two years for the employer. She developed a record of chronic tardiness, mostly for periods of a few minutes on each occasion. During the latter portion of her employment she was tardy almost every other workday. The employer gave her several verbal warnings concerning this tardiness, and also gave her formal warnings at her six-month and one-year evaluations. She also received a verbal and written warning regarding tardiness on one occasion midway between her evaluations. Five months after her last evaluation, the employe called in to indicate she would be late because she had an emergency dental appointment due to a severe toothache. When she came to work later that day, the employer discharged her for her overall attendance record. The appeal tribunal found misconduct and the commission affirmed.

Held: Reversed. The judge in this case involving the "straightforward" issue of being late for work, is as competent as the commission to judge whether the employe's tardiness constituted misconduct for unemployment compensation purposes. The employer had only given the employe two written warnings as part of her annual review (without saying anything about the written warning the employe had received between these two reviews). The employe's tardiness did not constitute a deliberate violation of the employer's interests and therefore was not misconduct under the statute.

Richard D. Christensen, Nancy Christensen v. Chicago West Transportation, Inc. and LIRC, No. 91-CV-97 (Wis. Cir. Ct. Marinette County March 23, 1992) (Bench decision)

Claimants began work as truck drivers for the employer in August, 1989. Beginning in April, 1990 they became upset with the way their paychecks were handled. They quit their employment on June 27, 1990. They applied for unemployment benefits and alleged that they quit because their checks were late, they were not paid for some trips and that improper deductions were taken from their checks.

An initial determination found no eligibility. At their hearing they gave as reasons for quitting only the late checks and unpaid trips. The employer denied those charges except for two checks issued while one owner was hospitalized for a heart attack and surgery. The owner also testified that the claimants never mentioned any of their complaints even at the time that they quit, but said they were quitting because they wanted to get off the road. The ALJ found no eligibility and the commission affirmed.

On appeal to the circuit court the claimants objected to the failure to consider their complaint regarding improper deductions from their paychecks. They noted that the hearing notice, mailed on Friday, November 7, 1990, was received by them on Monday, November 10, 1990. The hearing was scheduled for Monday, November 17, 1990. Instructions on the reverse of the hearing notice required that any documents to be introduced as exhibits must be received by the hearing office one week before the hearing date. In a telephone call to the hearing office claimants were told to immediately send any documents they had available but they could not wait the two or three days they felt it would be necessary to prepare the relevant driver's settlement forms. Therefore those documents were not submitted because of claimants' inability to comply with the time limits. They did not mention this problem at the hearing or in their petition for commission review. Claimants contend that those documents would prove that the employer took improper deductions from their checks.

Held: Remand to the commission for the purpose of receiving the claimant's driver's settlement form, taking testimony with respect to those forms, and rendering a new decision based on all of the evidence.

Michael T. Ciszewski v. Bruner Corp. and LIRC, No. 94-CV-000239 (Wis. Cir. Ct. Milwaukee County November 29, 1994)

full text available here

Employe worked for a business which manufactured commercial and industrial water treatment equipment. The employer discovered that large quantities of its inventory had been disappearing, and also that Roger Balough, the brother of one of its executives, John Balough, had been selling its goods at a significant discount, to manufacturer's representatives of the employer including Stickler. Employe, who had worked for Stickler before coming to the employer, was questioned several times as to whether he had any knowledge of sales or purchases of the employer's products other than through regular channels. Initially he claimed not to know anything about sale of the employer's products; eventually he conceded having bought the employer's products from John Balough at large discounts while at Stickler. Still later the employer learned that even after leaving Stickler and coming to work for it, Ciszewski was continuing to buy the employer's products directly from John Balough, at significant discounts, for use in his personal business. His engaging in this side business was also arguably contrary to a conflict of interest agreement he had signed. He was suspended and then fired. LID, ATD and LIRC found good cause for the suspension and discharge for misconduct, and denied benefits. Employe appealed.

Held: Affirmed. Credible and substantial evidence supports the agency's findings. Ciszewski was less than candid and truthful with the employer about his involvement in this scheme by which goods stolen from the employer were sold. As such, he intentionally interfered with the employer's interests, and this constituted good cause for suspension and misconduct connected with his employment.

Lynwell Clark v. LIRC and Cornwell Personnel Associates, Ltd., No. 91-CV-013499 (Wis. Cir. Ct. Milwaukee County March 24, 1992) 

The employe (plaintiff) worked for defendant temporary employment service. His application for employment placed no restrictions or limitations on where he would work in Milwaukee. He reported two addresses to the employer--one where his checks were to be sent and one where he lived. The employer used the address where he lived for his job assignments.

The employe completed a job assignment on May 7, 1991. His application for employment set forth that he would contact the employer immediately after the completion of an assignment and that failure to contact the employer would indicate he was not available for work and had terminated his employment. He notified the employer of the completion of the assignment and was offered a new assignment starting the next day at 7 a.m. He subsequently refused the assignment because of childcare requirements and because he considered he would be unable to arrive at the new job site timely via public transportation on weekends. He did not own a vehicle. He filed claim for U.C. benefits stating he had been laid off due to lack of work.

The ALJ reversed the initial determination and held the employe's quitting was without good cause. LIRC ordered further testimony and after further hearing affirmed the ALJ's decision.

Held: Affirmed. The additional testimony taken focused on the location of the potential employer and the various bus schedules. The schedules established he could reach the potential employer's establishment (contrary to what the employe stated he had been told by the bus company).

As to the employe's contention that he did not quit by refusing the new assignment but was discharged, his employment contract provided that he would be deemed to have voluntarily quit if he failed to report for an assignment without good cause. Under the case law voluntary termination includes conduct inconsistent with a continuation of the employe-employer relationship. The offer of work was reasonable (and the location and travel involved was reasonable) and his refusal of the job assignment was without good cause and constituted a quitting.

Michael J. J. Clark v. Mermaid Car Wash, Inc., No. 94-CV-1444 (Wis. Cir. Ct. Dane County August 18, 1994) 

The plaintiff-employe--representing himself, served the commission with a document titled SUMMONS AND COMPLAINT naming his former employer as the only defendant. The document indicated it was a request to review a LIRC decision based on the commission's misunderstanding of the facts. The summons did not comply with sec. 801.095, Stats. The commission, an unnamed party that has the right to seek dismissal based on a jurisdictional defect, moved to dismiss.

Held: Motion granted. The commission's decision was mailed to plaintiff together with a standard notice informing him of his appeal rights. "Included in the notice is a clear statement that a summons and complaint must be filed with the court and served upon the commission . . .," the statute involved, and that the action must be commenced against the commission as one of the defendants.

Although the plaintiff was late filing his brief, he is representing himself and is afforded some leniency. The court therefore considered his brief.

If a defect is a fundamental, as, opposed to a technical defect, it is fatal to the court's jurisdiction. If the defect is technical and plaintiff can show defendant was not prejudiced, the error will not defeat jurisdiction.

An error in the content and form of the summons and complaint "are consistently held to be technical defects, . . ." A defendant timely served with an authenticated summons and complaint but not named as a defendant is a fundamental defect and the court has no personal jurisdiction. Without personal jurisdiction the court cannot proceed.

Clowns of Delavan, Inc., Clowns for the Fun of It, and Gerard W. Petrone, Jr v. LIRC and DILHR, No. 93-CV-498 (Wis. Cir. Ct. Walworth County April 11, 1994)

The department audit had found that Gerard W. Petrone, Jr., Clowns Lounge for the Fun of It, operating an exotic dancer nightclub, became an employer subject of Chapter 108, Wis. Stats., beginning with the second quarter of 1989 through and including the fourth quarter 1990. The audit also estimated some amounts because plaintiff had not provided any information with regards to payments to the exotic dancers. Plaintiff was the son of the prior owner of the establishment who was during the relevant period of audit incarcerated. Subsequent to a hearing the appeal tribunal affirmed the department's initial determination.

The appeal tribunal found that although there was a minimal amount of control, plaintiff's responsibility for liquor license, state statutes, agreement with liquor distributors and ownership of some of the equipment and location for the performance of the dancing was sufficient enough control to establish an employment relationship. The ATD also found that because there was no evidence from any of the dancers the employer had failed to meet its burden on the independently established part of the test. Finally, the appeal tribunal held that under the circumstances the plaintiff had a duty to provide evidence of nonownership during the period that the plaintiff contested ownership of the business. The commission affirmed the appeal tribunal decision.

Held: Affirmed. The appeal is limited to whether Gerard Petrone, Jr. was the employer for any periods prior to November 3, 1990 (fourth quarter of 1990). There is substantial evidence to support the LIRC finding that Gerard Petrone, Jr. was the employer commencing with the period of the second quarter of 1989 through and including the fourth quarter of 1990. Gerard C. Petrone put nothing into the record and the administrative law judge accordingly found against him. Gerard Petrone, Jr. had the burden of proving nonownership once the department established there had been employment, and that he had a significant connection with the employment, and the records relating to the employment during the relevant period. His failure to bring any exculpatory evidence was deemed to be an acquiescence of ownership.

Sue L. Colburn v. LIRC and Clinic of Neurology, Ltd., No. 93-CV-014086 (Wis. Cir. Ct. Milwaukee County October 11, 1994) 

After completing a course of study and obtaining a certificate for a health program in August 1992 the employe contacted the employer to discuss working together. In December 1992 the employe began providing services to patients of the employer. She is the only person who provides the services to the employer and does so on Tuesday afternoons and Wednesday mornings. She is paid on an hourly basis. The contract between the employe and the employer is oral and was negotiated prior to start of the performance of services in December 1992.

Effective January 1, 1993 the employe formed a corporation which she owns. Fees which she receives for services are paid to the corporation. The commission found that the employe performed services for the employer in an employment. It concluded that wages paid to her were to be included in computing her base period wages and were required to be reported as they are earned. The employe contended that she met both of the sec. 108.02 (12)(b) tests for an exception to the definition of an employe. The commission held that she did not show that the services had been performed in an independently established trade, business or profession in which she was customarily engaged.

Held: The commission reasonably disregarded the corporate form and pierced the corporate veil. Arguments based on evidence outside the record were properly rejected by the commission and are not considered by the court. The facts support the determination that the employe was using the corporation to avoid having her income subject to unemployment compensation obligations, gain an unfair advantage or to commit an injustice. The commission determinations are based on undisputed facts in the record and are reasonable. Its decision is affirmed.

Rodney Coleman v. DILHR and Peck Foods Corporation, No. 90-CV-01371 (Wis. Cir. Ct. Milwaukee County February 25, 1991) (Bench decision)

The plaintiff-employe commenced an action for judicial review of a commission decision affirming an appeal tribunal decision holding that he had been discharged for misconduct connected with his employment for insubordination. The court established a briefing schedule followed by oral argument. Plaintiff did not file a brief. Prior to oral argument the commission advised the court that in lieu of deciding the case on the merits the court could dismiss the action for failure to prosecute, pursuant to sec. 805.03, Stats.

Held: Dismissed for Failure to prosecute at oral argument.

Richard A. Commander v. LIRC and City Janitorial Service, Inc., No. 93-CV-3637 (Wis. Cir. Ct. Dane County March 25, 1994) 

The employe had worked for the employer as a janitor on an hourly basis beginning in August 1992. He worked 30 hours per week until January 6, 1993, when his hours were reduced at his request so that he could accept a full-time job. He was discharged from the full-time job on January 14, 1993. The employe's last day of work for the employer was February 28, 1993. He told the employer by telephone on March 5, 1993 that he was quitting. His application for unemployment benefits was denied on the grounds that he had quit.

Held: Affirmed. The employer's refusal to return the employe's working hours to 30 per week is not good cause for his quitting. The hours were reduced to enable the employe to take another job. The refusal to increase them was an appropriate exercise of managerial authority and did not demonstrate any fault on the part of the employer.

The stress that the employe experienced from living with a violent and unstable roommate does not meet the physical inability to continue working exception. In fact, his self-proclaimed inability would appear to disqualify him from receiving benefits.

The employe's quitting also does not meet the exception for quitting part-time work. The employe was not otherwise eligible to receive benefits due to the loss of his full-time employment. The loss of the part-time job here is not related to the loss of the full-time work. The seven week delay between the loss of the full-time and part-time jobs renders the exception inapplicable.

Perry L. Comparin v. LIRC and The Rick Inn, No. 93-CV-002937 (Wis. Cir. Ct. Milwaukee County December 13, 1993

Plaintiff employe commenced action for judicial review. The court established a briefing schedule. The employe failed to submit a brief to the court in support of his action. The commission moved to dismiss the action on the ground that the employe failed to prosecute.

Held: Motion granted pursuant to sec. 805.03, Stats.

Cornwell Personnel Associates, Ltd. v. LIRC and Robert E. Linde, 175 Wis. 2d 537, 499 N.W.2d 705 (1993 Ct. App) 

Cornwell is in the business of placing temporary employes. Linde's first placement by Cornwell was at Western Products on about August 10, 1987. His wage was $4.25 per hour for a variety of assignments which Cornwell classified as general labor. He received raises to $5.75 per hour by the time the assignment ended on February 3, 1989 (week 5).

Linde's next placement by Cornwell was as a punch press operator at Production Stamping from April 4, 1989 (week 14) through April 10, 1989 (week 15), second shift, at $5 per hour. Linde telephoned Cornwell on April 11, 1989, was told that the Production Stamping assignment was finished and was offered three other assignments. He declined each of those assignments.

Linde was found eligible for unemployment benefits at each level of the administrative process. The commission concluded that he terminated his work with good cause attributable to the employer pursuant to sec. 108.04 (7)(b), Stats. Alternatively it concluded that he had accepted work in week 14 1989 (Production Stamping) which he could have refused because the wages, hours or other work conditions were substantially less favorable to him than those prevailing for similar work in the locality and that he terminated that work in week 15, 1989 within ten weeks after starting, within the meaning of sec. 108.04 (7)(e), Stats.

The circuit court reversed the commission's decision holding that the jobs offered did not demonstrate a real and substantial action that was unreasonable and detrimental to Linde. Therefore there was no good cause attributable to Cornwell. The circuit court also concluded that the fair labor standards statute did not apply since under commission policy the job offers were not new work and since Linde had accepted and completed the Production Stamping assignment.

Held: The commission correctly concluded that the employe's quitting was for good cause attributable to the employer. Its decision is based on finding a significant reduction in wages to a level substantially below prevailing wage rates. The commission found that the new assignments resulted in wage reductions of 15 to 20 percent.

Sec. 108.04 (7)(f), Stats., does not preclude a finding of good cause attributable since the statute does not preclude a good cause finding if the new wage rate is more than two-thirds of the previous wage rate. The court defers to the commission's application of the statute.

The court rejects the commission's conclusion that sec. 108.04 (7)(e), Stats., provides another exception to the quit disqualification. Under that section the employe must terminate "such work" which refers to the "new work" under 108.04 (9). The three offers were not new work and the employe did not terminate the Production Stamping job. Thus under these facts sec. 108.04 (7)(e), Stats., does not provide the basis for an exception.

Cornwell Personnel Associates, Ltd. v. LIRC and Robert E. Linde, No. 91-CV-4103 (Wis. Cir. Ct. Milwaukee County March 31, 1992) 

Cornwell is in the business of placing temporary employes. Linde's first placement by Cornwell was at Western Products on about August 10, 1987. His wage was $4.25 per hour for a variety of assignments which Cornwell classified as general labor. He received raises to $5.75 per hour by the time the assignment ended on February 3, 1989 (week 5).

Linde's next placement by Cornwell was as a punch press operator at Production Stamping from April 4, 1989 (week 14) through April 10, 1989 (week 15), second shift, at $5.00 per hour. Linde telephoned Cornwell on April 11, 1989, was told that the Production Stamping assignment was finished and was offered three other assignments. He declined each of those assignments.

Linde was found eligible for unemployment benefits at each level of the administrative process. The commission concluded that he terminated his work with good cause attributable to the employer pursuant to sec. 108.04 (7)(b), Stats. Alternatively it concluded that he had accepted work in week 14 1989 (Production Stamping) which he could have refused because the wages, hours or other work conditions were substantially less favorable to him than those prevailing for similar work in the locality and that he terminated that work in week 15, 1989 within ten weeks after starting, within the meaning of sec. 108.04 (7)(e), Stats.

Held: There is no good cause attributable to the employer which caused Linde to quit. The jobs offered by Cornwell did not demonstrate a real and substantial action that was unreasonable and detrimental to Linde. The jobs and wages offered were not contrary to any agreement between Cornwell and Linde. Additionally the good cause attributable argument cannot rely on the fair labor standards provisions of 108.04 (9), Stats., since this only applies when an employe refuses to accept new work. Under the commission's holding in temporary help situations that an immediate offer of another assignment continues the employment relationship, those offers were not new work.

The exceptions found in secs. 108.04 (7)(e) and 108.04 (9)(b)1., Stats., also do not apply since Linde did not refuse the assignment at Production Stamping, but accepted and completed it. Therefore the quit disqualification has no exceptions in this case and benefits are denied.

(Reversed in published decision. 175 Wis. 2d 537, 499 N.W.2d 705 (1993 Ct. App.) 9424).

Steven G. Creviston v. State of Wisconsin, DILHR, Journal/Sentinel, Inc., Cortec Industries, Inc., No. 93-CV-506 (Wis. Cir. Ct. Eau Claire County February 21, 1994) (Bench decision)

The plaintiff (employe) lived in the Milwaukee area where he worked full-time for Cortec Industries, Inc., and delivered newspapers for the Journal/Sentinel, Inc. He was laid off from his full-time job but continued delivering newspapers. He initiated a claim for unemployment benefits and established a weekly benefit rate of $240. After receiving partial benefits for a number of weeks he quit his newspaper job and moved his family to Eau Claire.

An initial determination was issued while he was receiving partial benefits. That determination held that no benefits were payable based on work performed for the newspaper because his services were not covered by Wisconsin's U.C. Law under sec. 108.02 (15)(k)4., Stats. That determination was not appealed and became final. Another determination was subsequently issued holding the employe's eligibility for benefits was suspended because he quit his employment with the newspaper.

At the hearing requested by the employe, the newspaper did not appear. Because the excluded employment initial determination had become final and because the newspaper employer did not appear at the hearing, the ALJ ruled that the only issue she could consider was whether the employe's quitting was because it was economically unfeasible for him to continue the part-time work under sec. 108.04 (7)(k), Stats., and Wis. Admin. Code sec. ILHR 132.03.

The ALJ's decision suspended benefits on the ground that by applying the administrative code formula the employe's quitting was not within the "economic unfeasibility" provision. The commission modified and affirmed by holding that some payments by the employe were in fact expenses but that under the formula, he earned $3.65 in excess of his full weekly benefit rate.

The employe contended that $3.65 was a de minimis amount and that because the employe was engaged in self-employment or was an independent contractor as a newspaper carrier, there was no employment that he quit and therefore the court should remand the case on the self-employment/independent contractor issue because LIRC's findings of fact were not supported by credible and substantial evidence. During the first court hearing the employe's attorney withdrew the quit "economically unfeasible" issue.

The court noted the statutes seemed to be inconsistent because claimant was an employe for some purposes but not an employe for other purposes. The court also noted that many services are in excluded employment, that the inconsistent provisions have existed for many years, and that LIRC's conclusion was entitled to great weight.

Held: Affirmed.

Matt Cundiff v. LIRC and DILHR, No. 93-CV-04 (Wis. Cir. Ct. Forest County August 9, 1994)

Plaintiff, d/b/a Cundiff Forest Products, admittedly received a Notice of Levy proceeding which attached to any of his personal property in the possession of or under the control of two banks in order to collect a U.C. tax debt owed DILHR. He also admittedly received an initial determination which held him liable for contributions and interest to the U.C. Reserve Fund for 1989. Both documents noted they would become final unless an appeal was received or postmarked within 21 days. Both also had detailed information on the reverse side regarding appeal rights together with office, address, and a telephone number to contact regarding questions relating to appeal rights. Through his attorney he appealed, one appeal being 48 days late and the other being 28 days late. DILHR requested an explanation as to why he was late. His only response was that he was not represented by an attorney.

An appeal tribunal decision affirmed by the commission, dismissed both appeals as untimely and held that he failed to show probable good cause that they were late for a reason beyond his control.

Held: Affirmed. Considering the statutory and administrative code provisions the issue does not relate to the underlying facts as to the validity of the department's levy and assessment. The standards of judicial review based on the case law show that LIRC has had ample experience in determining what the "probable cause . . . beyond the control . . ." language means. Based on a number of circuit court decisions (cited) failure to obtain an attorney has been used unsuccessfully as a defense for filing a late appeal. Here, plaintiff could have contacted the office and filed an appeal without an attorney. He has not established probable good cause.

The U.S. Supreme Court has stated that due process requires an opportunity to be heard in a meaningful time and in a meaningful manner. Plaintiff was advised that he had to act within 21 days to preserve his right to appeal. He was given ample time to appeal and he was given the information he needed to appeal. He was afforded an opportunity to be heard at a meaningful time and in a meaningful manner.

Section 108.09 (4)(f), Stats., is not ambiguous and is therefore not constitutionally defective. There is no claim here that plaintiff is mentally handicapped to the point he is incapable of asking for help.

It is incumbent to the orderly administration of our legal system that citizens respond to these circumstances in a timely fashion rather than do nothing until it is too late. Deadlines facilitate the orderly administration of the judicial process and if deadlines were abandoned it would result in an administrative nightmare with unscrupulous individuals abusing the system.

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