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


GLEN F DUFF, Employee

MASTER BUILDERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99004194MD


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 employe is eligible for benefits beginning in week 5 of 1999, if otherwise qualified.

Dated and mailed February 24, 2000
duffgle.usd : 132 : 1  SW 844  SW 875  SW 875.27

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse findings and order of the administrative law judge which found that the employe had quit work that paid a substantially less favorable rate of pay and therefore was eligible for unemployment insurance benefits. The employer states in its petition that it believes that because $9.00 is only .015 percent less than $9.14 it is not substantially less favorable than the prevailing wage. However, the department and the commission have consistently defined the substantially less favorable rate of pay as that which comprises the lowest 25 percent of all wages in the employe's labor market for similar work. The fact is that in the employe's labor market 75 percent of workers earn more than $9.14 per hour. The employe is therefore squarely within that 25th percentile. The employer also argued at the hearing that the employe should not be paid as much as other maintenance workers because he did not have much experience. First, the employer acknowledged at the hearing that it did not recall how much experience the employe had. Second, as the commission has previously found, and as noted by the administrative law judge, wages for inexperienced workers are taken into account in the expert report by the wage range for the field itself. See Weisfeld v. Hiebing Custom Kitchen, UC Dec. Hearing No. 99401363AP (LIRC Nov. 12, 1999).

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that the employe better fits into the janitor category rather than the maintenance worker category that was used under COED to find a substantially less favorable wage of $9.14 per hour. A maintenance worker has at least two years training and experience and he should be able to repair machines. The employe in this case was asked to do clean-up in apartments. The employer testified "he would work on the walls, the ceilings. He would do tiling, repairs, yard work and roofing and sliding."

I would remand the case to get a COED report on the work the employe actually did. For these reasons, I dissent.

Pamela I. Anderson, Commissioner


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