BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


ROBERT L. JACKSON, Employee

CORNWELL PERSONNEL ASSOC., LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-608908


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 Tribunall as its own.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, the employe is eligible for benefits, if he is otherwise qualified..

Dated and mailed February 25, 1991
105 : CD6077   SW 844   SW 875.05

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

MEMORANDUM OPINION

Section 108.04 (7)(e) of the Statutes states that the voluntary quit disqualification of 108.04 (7)(a) does not apply if the employe accepted work he or she could have refused with good cause under 108.04(8) and terminated such work with the same good cause and within the first ten weeks after starting the work, or if the employe accepted work he or she could have refused under 108.04 (9) and terminated such work within the first ten weeks after starting the work. The first half of paragraph (e) states that the employe must quit the work with the same good cause he or she could have refused it under 108.04 (8); there is no such limitation with regard to the latter portion of paragraph (e), a quit of work an employe could have refused under 108.04 (9). Section 108.04 (9) likewise contains no language suggesting that a claimant must raise labor standards as a reason for quitting or refusing work. The Department of Labor, finally, has also expressly indicated that the labor standards are mandatory, minimum standards and, as such, are applicable whether or not a claimant raises them. See January 6, 1947 Program Letter No. 130 at 2.  For these reasons, it is irrelevant, that the employe did not assert labor standards as a reason for his quit of employment with the employer. Whatever reasons the employe did assert for his quit of employment are irrelevant for the same reason.

The employer next asserts that the labor standard provisions of section 108.04 (g) would not apply in this case, because the employe had quit employment and thus was not "otherwise eligible" for benefits, within the meaning of that section. This argument must fail, for the following reason. Section 108.04 (7)(e), the quit disqualification exception at issue here, and any other exception to the quit disqualification, for that matter, only come into play after an employe has quit his or her employment. Under the employer's reading of the statutes, no employe would ever be eligible for benefits via the portion of 108.04 (7)(a) which concerns the termination of work the employe could have refused under 108.04 (9). The latter exception of 108.04 (7)(a) under this reading would be completely superfluous; such a reading is to be avoided. The phrase "otherwise qualified" in 108.04 (9) can only refer to criteria outside the refusal or termination of work, such as the 108.04 (4)(a) requirements as to amount and distribution of base period wages.

The employer's final assertion, and the dissent makes it as well, is that the employe's wages were not substantially less prevailing to the employe, since the wages of the quit employment were "in line with" wages the employe previously had earned. The phrase "substantially less favorable" does not refer to the wages the individual had previously earned, however, but rather to the prevailing wage for the work in question. Only where "minor or purely technical differences are involved which would neither undermine existing labor standards nor have any appreciably adverse effect on the worker," may an employe be disqualified for refusal of, or in this case the termination of, work any conditions of which are non-prevailing. January 6, 1947 Program Letter No. 130 at 14. The program letter makes it clear that the phrase "substantially less favorable" addresses not prior work by the employe, but rather the fact that many of its conditions of work to which prevailing standards are applied, such as seniority and safety provisions, do not lend themselves to exact comparisons. Id . This interpretation by the Commission is consistent with that of virtually every court to have considered the matter. See, e.g., Allen-Bradley Co. v. DILHR, 58 Wis. 2d 1, 7, 205 N.W.2d 129 (1973). In Allen-Bradley, the court stated that the comparison required by 108.04 (9) is between the work refused and similar work in the locality. See also Konter v. Unemployment Compensation Board of Review, 76 N.E.2d 611 Ohio 1948) (the conditions of the work offered are not to be substantially less favorable than those prevailing for similar work in the locality) and In re Marsh's Claim, 196 N.E.2d 47 (N.Y. 1953) (since the statutory test is whether wage offered is substantially less favorable to claimant than prevailing wage for such work in the area, it "is of no legal significance" that the wage for the rejected employment was nearly as high as that which the claimant had previously been earning). For these reasons, the Commission rejects the employer's argument that the wages of the quit employment were in line with wages the employe previously had earned. It is understandable that the employer would make this argument, assuming his unawareness of the above-mentioned factors. The majority does not understand, however, how the dissent can continue to pretend these factors do not exist.

The majority can only demur to the first of the dissent's arguments, that the "lowest quartile" method of determining the prevailing wage does not adequately account for a variable distribution of wages in a wage range, and that the category of general laborer is too broad. States have discretion in defining what constitutes prevailing conditions of employment within the meaning of section 108.04 (9) and in Wisconsin, until quite recently, prevailing wages were all but the lowest quartile of a wage range. It was within the discretion of the state to so define prevailing wages, and the fact that it did not also perfectly correspond to wage distributions in a range is irrelevant to the correctness of its application. The same is true with regard to the broadness of particular employment categories. "Perfect" information is not always available to decisionmakers of any kind. The majority believes, however, that it is better to base its decisions upon the information available to it, rather than to ignore that information and instead simply deny an employe befits based upon unsupported hypotheses as to what is prevailing in a given wage range. In this respect, the majority believes it is the dissent which goes too far.

NOTE: The Commission notes only that the employe's claim for benefits came in late 1989, but prior to December 31, 1989, when 1989 Wisconsin Act 77 changes in section 108.04 (9) became effective. Since those changes apply to new claims filed for unemployment compensation effective beginning on December 31, 1989, this case properly is analyzed under pre-Act 77 section 108.04 (9) of the Statutes.

PAMELA I. ANDERSON (dissenting) :

I am unable to agree with result the majority herein and I dissent.

First, I believe the category "general labor" is overly broad, especially since the majority are using the quartile system. The quartile system supposes that there is an even distribution of wages. This means that the model does not allow for a wide range of pay where a high percentage of the jobs pay a specific wage. When the greatest number of jobs are at the low end of the wage scale, it is possible that 75 percent or more of the jobs would not be prevailing under this formula. The program letter that the majority cites defined prevailing wage as the more frequently occurring wage and then applied the substantially less favorable to the individual standard.

At the time of the 1947 program letter, "similar work" was narrowly defined so that a category like general labor was too broad. They would apply different wage scales for waitresses who worked at a greasy spoon restaurant as opposed to an expensive restaurant. While I appreciate the technical difficulty of providing accurate labor market information, I believe the majority goes too far.

In defining "substantially less favorable to the individual," I believe one must take into consideration the kind of pay the individual has received in the past. We do not depress wages by paying someone who works far a sheltered workshop minimum wages if what is all they have earned in the past and that is their skill level. The Commission's interpretation could lead to sheltered workshop workers not being employed if it did not consider past wages.

In this case, the individual had worked for pay in this pay range and he did not perceive pay as a major problem. Had this employe earned $5.50 to $6.00 for the last year or so and labor market information showed that narrowly defined jobs in his labor market paid the same amount or greater and the employer had offered him work for $4.00 or $4.50 I would have agreed with the majority that he falls under protection of labor standards even if he only mentions transportation problems.

I would reverse and find that the employment the employe was offered was not substantially less favorable to him and deny benefits.


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