BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

MICHAEL T. FITZPATRICK, Employee

Involving the account of

JONES INTERCABLE, INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91-401801 GB

Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 18 of 1991, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed February 13, 1992
132 - CD1013  VL 1080.261 VL 1080.269

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The employe has petitioned for Commission review of the adverse Appeal Tribunal Decision which found that the employe quit his position with the named employer and his quitting did not fall within any statutory exception permitting immediate benefit payment. In the brief accompaning the petition, the employe's attorney maintains that the employe's quitting fell within section 108.04 (7)(f) of the Statutes. The Commission disagrees.

Section 108.04 (7)(a) of the Statutes provides that if an employe voluntarily terminates employment with an employing unit, benefit eligibility shall be suspended until four weeks have elapsed since the week of the quitting, and the employe has earned wages in covered employment equaling at least four times his weekly benefit rate, unless the termination was within some statutory exception. Section 108.04 (7)(f) provides that paragraph (a) does not apply if the employe terminated his work because the employe was transferred to work paying less than two thirds of his preceding wage rate with the employing unit, except that the employe is ineligible to receive benefits for the week of termination and the four next following weeks.

In the brief supporting the petition, the employe's attorney maintains that the employe's transfer was to work paying less than two-thirds of his preceding wage rate. At the time of the transfer, the employe received an hourly rate of $9.75 per hour. The employe was being transferred to a customer service position he held nine months earlier. He was paid $6.00 per hour in the customer service position. At the hearing in this matter, the employer and employe both agreed that no discussion was held regarding the rate of pay he would receive upon his transfer back to the customer service position. The credible testimony at the hearing established that he could have earned at least $7.50 per hour, what other customer service representatives with seniority comparable to the employe's earned in such position. A reduction in wage rate from $9.75 per hour to $7.50 per hour does not meet the criteria of section 108.04 (7)(f) of the Statutes. The employe's attorney argues that the reduction was greater due to the fact that in his last position the employe worked 50 hours per week and received travel expenses. However, section 108.04 (7)(f) of the Statutes clearly states that the reduction must be in the employe's wage rate. Indeed, arguments that paragraph (f) is applicable when a transfer results in less than two-thirds of the "wages" previously received has been rejected. In Linda Gustrowskyv. DILHR and Columbia County, Cir. Ct. Case No. 152-235, April 2 , 1977, the court rejected an argument that a transfer from a full-time position to a part-time position fell within the parameters of paragraph (f). In that case, the Court stated:

"The employe contends that paragraph (f) of sec. 108.04 (7) was applicable because the offered transfer employment was for a wage paying less than two-thirds of the wage she had been receiving. The crucial words of this paragraph are 'paying less than two-thirds of his immediately preceding wage rate.' (emphasis supplied.)

"'Wage rate' is not to be construed as synonymous with wages but refers to the rate of pay per unit of time such as an hour or week.

"(f) of sec. 108.04 (7) has no application to the facts of this case because the offered transfer work involved no reduction in applicant's wage rate . . ."

The fact that the position as customer service representative would have resulted in a return to the prior hours and duties previously held by the employe, did not constitute good cause attributable to the employer for voluntarily terminating the employment relationship.

The courts have held that to constitute "good cause" for quitting, the employe's reason must relate to some real, substantial and unreasonable act on the part of the employer. Worachek v. Koch Brothers,  Inc. &  Ind.   Comm ., Circuit Court, Case No. 104-461, June 2, 1961. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965). Furthermore, it must be a reason that would justify him in becoming unemployed rather than continue working. Hur v. Radio Shack Tandy Corp. & DILHR, Dane County Circuit Court, Case No. 153-082, June 6, 1977. There was no act or omission on the part of the employer which would justify the employe in becoming unemployed rather than continuing work. Indeed, the impetus behind the employer's decision to transfer the employe was the employe's decision to quit his employment to attend school. The change was not made to spite the employe or to induce him to quit. Finally, when initially informed of the potential transfer, the employe did not apprise the employer that he was in any way dissatisfied with such a prospect.

The Commission also notes, as did the Appeal Tribunal, that the employe at the time he quit his position did not apprise the employer of the reason for doing so. He did not inform the employer that he was either dissatisfied with the wages or the hours of the customer service position nor did he inquire as to whether he would be returned to the same wage rate and hours. In this regard, the Commission agrees with the Appeal Tribunal that the employe's quitting was anticipatory in nature and not based on any fault attributable to the employer.

For the above reasons, the Commission affirms the Appeal Tribunal Decision.

cc: Thomas M. Fitzpatrick
Attorney at Law
Fitzpatrick, Smyth, Dunn & Fitzpatrick

Michael H. Auen
Attorney at Law
Foley & Lardner

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