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


RAYMOND K SPADE, Employee

ABITEC CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005261MD


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about nine months as a warehouse worker for the employer. His last day of work was August 24, 2000 (week 35).

The employee began work for the employer on first shift. At his interview for employment the employer mentioned that it anticipated starting a second shift and indicated that the hours would possibly be from 10:00 a.m. to 6:30 p.m. or noon to 8:30 p.m. The employee did not object to the hours. The employee notified the employer at hire that his mother was terminally ill with cancer and that he would need time off to care for her.

In August of 2000, the employer notified the employee that he would be transferred to second shift. The employer's second-shift hours were from 4:00 p.m. to 12:30 a.m. Sunday through Thursday. The employee requested a variance in the hours in order to care for his mother. His request was denied. The employee quit his employment because he was unable to care for his mother at night because of the change in hours. The employee has two siblings but they are not willing to assist in the care of their mother.

The employee submitted a medical form completed by his mother's doctor indicating that the employee is "needed to be available to assist with care." A report setting forth conditions of employment in the employee's labor market indicates that only 17.2 percent of all work similar to that performed by the employee for the employer is performed on second shift.

The issue to be decided is whether the employee's quitting fell within any statutory exception to the quit disqualification. The commission finds that the employee quit his employment with good cause attributable to the employer. The employee quit due to the employer's decision to transfer him to second shift. The employer was aware of the employee's personal circumstances. The employee alerted the employer that he could not work the second-shift hours. More importantly, the employer's second-shift hours differed materially from the hours first proposed by the employer when the employee was hired. The employee's receptiveness to second-shift work was based on the employer's representation of an arrangement of hours that would allow the employee to care for his mother at night. Second- shift work is a substantially less favorable condition of employment when compared with similar work in the employee's labor market.

The commission therefore finds that in week 35 of 2000 the employee voluntarily terminated his employment with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2000, if otherwise qualified.

Dated and mailed January 18, 2001
spadera.urr:132:1: VL 1039.01  VL 1080.261

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission does not reverse the ALJ based on a different credibility or demeanor impression and therefore did not consult with the ALJ.

cc: ANTHONY G DEWAR
DIRECTOR OF OPERATIONS
C/O ABITEC CORPORATION


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uploaded 2001/01/22