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


THOMAS J HARTWIG, Employee

GENERAL MOTORS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005225MD


On September 9, 2000, the Department of Workforce Development issued an initial determination which held that the employee quit his employment but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on November 13, 2000 in Madison, Wisconsin before a department administrative law judge. On November 14, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee has worked since May 1995 as a long-term leave of absence replacement assembler on the medium duty truck line for the employer, a manufacturer of automobiles and trucks. His last day of work was Friday, August 18, 2000 (week 34), after which he began an expected three-week layoff intended by the employer to reduce inventory.

The employee and his fiancée were building a home. To obtain extra income for the house, on October 9, 1999 he began working as a part-time sales associate at a Rockford building materials store not subject to the Wisconsin unemployment insurance contributions provisions. His last day of work was Thursday, August 17, 2000 (week 34), when he voluntarily terminated that employment. On August 22, 2000, he applied for unemployment benefits. The commission believes the employee's quit falls within Wis. Stat. § 108.04(7)(e), and so reverses the appeal tribunal decision.

The employee had been working 40 hours a week for the employer. However, in June 2000, he replaced a co-worker in a department that worked longer hours. As a result, he was scheduled to work from 5 a.m. to 3:48 p.m., Monday through Friday. Often, he worked until 5 p.m. There were times when work was scheduled on Saturday and even Sunday. Meanwhile, his part-time employer, where he had been working about 20 hours a week, had increased his schedule from 6 p.m. to 11:30 p.m. or 12 a.m., to include some weekend times. Thus, the employee was scheduled for 50 to 60 hours of work for GM, and 30 to 35 hours per week for the non-subject employer, Home Depot. He indicated that he would have to call in absent from his part-time job, because he did not know in advance when he would be scheduled for weekends at GM until after his schedule for Home Depot was set. The employee married on July 7, and had intended to quit his employment with Home Depot at that time. Upon his return from his honeymoon, the employer was short-handed so the employee stayed on. At the beginning of August, Home Depot reduced the employee's hours down to approximately 5 per week. At that point, the employee decided he could finalize his intention to quit, and did so effective August 17.

The unemployment insurance law imposes a general disqualification for quits of employment, with limited exceptions thereto. One such exception is Wis. Stat. § 108.04(7)(e), pursuant to which the quit disqualification does not apply if the employee accepted work the employee could have refused under sub. (9) and terminated such work within the first ten weeks after starting the work. The reference to sub. (9) is to the labor standards provision, Wis. Stat. § 108.04(9), which states in relevant part that benefits may not be denied to an otherwise eligible individual for refusing to accept new work 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. Although the employee quit employment he had been performing for several months, he quit only approximately two weeks after the employer reduced his hours from 30 to 35 per week down to approximately 5 per week. When the employer so reduced the employee's hours, such change constituted new work for purposes of Wis. Stat. § 108.04(9). Federal Department of Labor Unemployment Insurance Program Letter 41-98 states that new work includes "an offer by an individual's present employer of: . . . . [d]iffent terms or conditions of employment from those in the existing contract." Given this, the change to 5 hours of work per week made the work "new work" within the meaning of Wis. Stat. § 108.04(9). The number of hours of the work, finally, only approximately 5 per week, is substantially less favorable to the employee than that prevailing for similar work in the locality.

The commission therefore finds that the employee accepted work in week 32 of 2000, that could have been refused because the hours of work were substantially less favorable to the employee than those prevailing for similar work in the locality, and that the employee voluntarily terminated that work in week 34 of 2000, within ten weeks after starting work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 34 of 2000, if he is otherwise qualified.

NOTE: If the employer is subject to the contribution requirements of the Wisconsin Unemployment Insurance Law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed February 1, 2001
hartwth.urr : 105 : 1  VL 1034 VL 1039.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal on the ground of a differing credibility assessment from that made by the administrative law judge. Such is not the case here; the commission has accepted the factual findings of the administrative law judge. As a matter of law, the commission believes the employee's quit falls under Wis. Stat. § 108.04(7)e).

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