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


VICTOR J KING, Employee

QC ELECTRONICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00002896BO


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified. This matter is remanded to the department to investigate the employee's availability for work because of welding self-employment and lack of a driver's license.

Dated and mailed October 30, 2000
kingvic.usd : 132 : 1 SW 844

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employee voluntarily terminated his employment with good cause attributable to the employer. The employer maintains that the ALJ improperly characterized a reduction in hours as "new work". The commission disagrees. The number of hours an employee works in a week is considered a condition of employment and specifically listed as such in the labor standards provisions of Wis. Stat. § 108.04(9)(b). The State of Wisconsin is required, in order to meet federal conformity requirements, to determine whether such condition of employment is substantially less favorable to the employee than exists for similar work in the labor market. In this case, the labor market report introduced into record indicated that less than five percent of similar work consists of 32 hours per week. The employer has not developed any arguments to support other assertions contained in its petition. For these reasons, the commission affirms the appeal tribunal decision.

cc:
ATTORNEY FRANK C SUTHERLAND
LATHROP & CLARK LLP

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Under § 108.04(9)(b) which says "PROTECTION OF LABOR STANDARDS. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: (b) If the wages, hours (including arrangement and number) or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality."

While the reduction of the employee's work to 32 hours a week is arguably "new work" and based on COED less than 25% of the people who are welders work less than 32 hours per week, that does not resolve the issue. First, I agree with the employer that welder is probably not the appropriate job category but I also believe that most job categories will be under 25% of the people. The employee's hourly wage was not reduced and that wage meets the labor standards test. There is no testimony in the record as to what the prevailing standard is for fringe benefits for those who work in this kind of work in the employee's labor market and work 32 hours per week.

The employee was warned that the employer was considering terminating the employee because of the amount of work he missed. Some of his excuses such as taking care of his sick pigs or because he was getting a delivery of pigs are not acceptable reasons for missing work. It appears that the employee had a personal business that was competing for his regular work time and that the employee placed his personal business first if there was a conflict. The employee had it within his ability to arrange his schedule to allow for 40 hours of work per week and if he had done so the employer would not have reduced him to part-time hours of 32 per week. Automatically finding that this depresses labor standards is absurd. Reducing his hours to 32 per week is not substantially less favorable to this individual. In fact the employer could have fired the employee which certainly would have less favorable to this individual. The real major difference to the employee in this case is taking away fringe benefits but the record does not show what percentage of employer's pay fringe benefits to part-time employees or for that matter to full-time employees.

If the employer in this case had reduced the employee's hours and eliminated fringe benefits without a disciplinary reason, this case might be different.

For these reasons, I would reverse and find that the employee did not have good cause attributable to the employer to quit or any other reason that would allow for the immediate payment of benefits.


________________________________________
Pamela I. Anderson, Commissioner


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