Cooper's, Inc. v. Industrial Commission

• Decision Date: 07 February 1962
• Citation: 15 Wis.2d 589,113 N.W.2d 425
• Parties: COOPER'S, INC., a corporation, Appellant, v. INDUSTRIAL COMMISSION and Edward F. Blanchette, Respondents.
• Court: Wisconsin Supreme Court

Page 425

113 N.W.2d 425

15 Wis.2d 589

COOPER'S, INC., a corporation, Appellant, v. INDUSTRIAL COMMISSION and Edward F. Blanchette, Respondents.

Supreme Court of Wisconsin.

Feb. 7, 1962.

Mittelstaed, Heide, Sheldon & Hartley, W. A. Sheldon, Kenosha, for appellant.

Arnold J. Spencer, Chief Counsel, Industrial Commission, Unemployment Compensation Dept., Madison, for respondents.

BROADFOOT, Chief Justice.

Following a hearing at Kenosha before an examiner for the commission acting as an appeal tribunal, said appeal tribunal made the following findings of fact:

'The employe worked for the employer as an accountant in its garment manufacturing business from April 1956 to February 6, 1959 (Friday of week 6), when he was discharged because he would not work overtime as directed.

'The employe was paid on a weekly salary basis, receiving $113 and some cents a week. When hired he was informed that it would be necessary for him to work overtime without additional pay, but was assured that there would not be much overtime. At that time he indicated that he did not want to work a great deal of overtime because he was conducting a private accounting business of his own outside of working hours. He was not requested to work any overtime in 1957.

'During the winter of 1958, he was assigned to some overtime work when he took inventory trips out of the city in which he customarily worked. He did not protest this.

'In June of 1958 an accountant who had been employed by the employer for 37 years became ill and hospitalized. He died in July. He was not replaced. Thereafter, the accounting department fell behind in its work necessitating at the end of the year a great deal of overtime work by the remaining staff. The employe worked overtime, but protested against the amount of overtime he was expected to work. Whenever he was late in reporting for work or absent from work due to illness, he made up the time lost. He worked during his lunch hour and after work in the afternoon. During the period from December 6 to January 29, he worked 26 1/2 hours overtime of which he kept a record.

'During the last six months of his employment, the employe's supervisor expected him to work from 45 to 55 hours each week instead of the scheduled 40 hours; an average of about 50 hours a week. Several discussions were held between the employe, his supervisor, and the office manager about the employe's reluctance to work the amount of overtime expected. The employe suggested that his wages be reduced to $90 a week and that he be paid for the overtime work. The employer refused to do this.

'On February 4 (Wednesday of week 6), the employe's supervisor ordered him to work from 7 p. m. to 9 p. m. that evening. The employe was willing to work 2 hours overtime, but objected to doing it at the time specified. He asked his supervisor if that was going to continue. The supervisor replied that it was and also '4 hours on Saturday.' From this the employe understood that his supervisor expected him to work 2 hours each evening and 4 hours on Saturday, 14 hours a week overtime, and he refused to do it. He was discharged on Friday of week 6.

'The employer alleged that the employe could be required to work overtime as directed without additional pay because he was an administrative exempt employe under the federal wage and hour law. An investigator from the United States Department of Labor found that the employe was not an administrative exempt employe and was entitled to $39.11 in overtime pay for the 26 1/2 hours overtime worked in December and January.

'Under the circumstances the employe's conduct did not evince any intentional disregard of the employer's interests. The employer demands were unreasonable.

'The appeal tribunal therefore finds that the employe was discharged but not for...