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


DONALD E ZURAWSKI, Employee

A  &  E  MFG CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96602067RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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, except that it makes the following modifications:

Add as the fifth paragraph under the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW:

"In the employe's labor market second shift work comprises less than 25% of the suitable work in that labor market. The employe believed that his transfer to second shift would involve more walking. In fact, it would not involve more walking and the employer had informed the employe of such fact."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 48 of 1995, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment equaling four times the weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $4420.00 to the Unemployment Reserve Fund. No waiver of the recovery of overpaid benefits is allowable.

Dated and mailed March 6, 1997
zurawdo.umd : 132 : 11  VL 1005

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION

The issue in this case is whether the employer's proposal to transfer the employe to second shift, a shift which is substantially less favorable in the employe's labor market, provided the employe with good cause attributable to the employer for voluntarily terminating his employment. (1)   The commission agrees with the administrative law judge that, given the short term and temporary nature of the change, it did not. There is a distinction between short term and temporary changes in conditions of work brought on by valid business reasons and permanent, or long term and indefinite changes in the conditions of work. In this case, the proposed shift change was both short term, up to approximately six weeks, and temporary. After a trial period, Mr. Fritchen would have returned to his normal shift and the employe would have returned to first shift work. The employer's motivation for the change was valid. The employe held a critical position in the employer's operation and therefore the employer needed to insure that a qualified replacement existed for the employe. This need was heightened after the employe expressed his intent to retire in a year.

Indeed, the commission has previously held that a temporary shift change for valid business reasons does not constitute good cause attributable to an employe for terminating work. In Jean M. Nayes v. LIRC, Manitowoc County Cir. Ct., Case No. 93-CV-373, August 4, 1994, the employe worked the night shift in the employer's obstetric unit. The employer was closing that unit and the employe temporarily transferred to the emergency room. Because of concerns raised regarding the employe's ability to handle the job, she was required to participate in a three month training program on second shift and would also lose a $.50 per hour shift differential. The employe quit her job because the transfer to second shift would require her to obtain child care. The commission found that the employe did not have good cause for quitting based on a proposed three month transfer to second shift since it was temporary in nature and also because the wage reduction was not substantial. The court affirmed finding that the economic costs to the employe were not unreasonable when balanced against the employer's legitimate interests and the fact that the transfer was for no longer than three months

Finally, in this case the employe objected to the shift change because he assumed it would involve more walking. However, the employer's witnesses, and in particular Mr. Fritchen who unlike the employe was familiar with the second shift position, established that the employe's assumption was erroneous.

cc: Attorney Robert L Swanson
Hartig Bjelajac Swanson & Koenen

Attorney Edward J Bruner Jr
Bruner & Chiappete SC


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Footnotes:

(1)( Back ) In its petition the employer argues that shift assignment is not a condition of work under sec. 108.09 (b), Stats., citing Allen-Bradley Co. v. ILHR Dept., 58 Wis. 2d 1 (1973). It is true that the Supreme Court held that "hours" in sec. 108.09 (b), Stats., referred to only the number of hours worked, and not the to the particular shift on which hours were worked. However, subsequent to the Allen-Bradley decision sec. 108.09 (b), Stats., was amended to state that hours included both number and arrangement.


uploaded 2001/01/16