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


RUFUS FLEMING, Employee

CABLE CONSTRUCTORS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01000966MD


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked as a lineman for the employer, a cable installer, for eleven months. His last day of work was January 11, 2001 (week 2).

In November of 2000 the employer moved its shop from a location on the north east side of Madison to Sun Prairie. The employee did not have a vehicle and frequently relied on his co-workers for rides to and from work. For a time the employee's co-workers were able to assist him because the employer was working in the Spring Green area, in the general direction of the employee's west side home. However, in mid-December the employer started working in Portage, and it was no longer convenient for the employee's co-workers to give him rides. Thereafter the employee sometimes provided his own transportation, and the employer would occasionally loan him its truck. Towards the end of the employment relationship the employer told the employee he could no longer borrow a vehicle and would have to get himself to work. The employee was upset about this, as he believed that others were allowed to use the employer's vehicle and that he was being treated unfairly.

The employee had a conversation with his union representative about the possibility of receiving unemployment benefits if he were to quit, and the union representative in turn spoke with the employer. On January 11, 2001, the employer prepared a separation notice which indicated that the employer had moved its location and the employee could not get to work. The employer also prepared a letter for the employee which stated that his continued stay with the company was 100% up to him, but that if he did not appear for work the following day the employer would assume he was opting for unemployment. The employer delivered both of these documents to the employee's home. The employee did not return to work thereafter.

The first question to decide is whether the employe's separation from employment was a quit or a discharge.

Although the appeal tribunal found that the employee was laid off by the employer, at the hearing both parties agreed that the employee quit, and it is clear from the evidence that this was the case. The employee had the option of retaining his job and was the moving party in the termination of the employment relationship.

The next question to decide is whether the employee's quitting was for any reason permitting the immediate payment of benefits.

The employee contended that he quit because the employer was abusive towards him. However, the overwhelming evidence indicates that the employee quit due to a lack of transportation. At no time has the employee maintained that the length of the commute to Sun Prairie was unreasonable, stating only that he lacked a vehicle. However, it was the employee's responsibility to get to work, and his lack of personal transportation is not a fault attributable to the employer. The employer never promised to provide the employee with transportation, and the fact that it assisted him on occasion does not suggest that it made a commitment to do so indefinitely.

The commission therefore finds that in week 2 of 2001, the employee terminated work with the employer, but not within any exception permitting the immediate payment of benefits, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in weeks 5 through 17 of 2001 in the total amount of $3,893, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 2 of 2001, 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. The employe is required to repay $3,893 to the Unemployment Reserve Fund.

Dated and mailed May 9, 2001
flemiru . urr : 164 : 8  VL 1007.01  VL 1015  VL 1080.266

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon a differing assessment of credibility.

cc:
Cable Construction Inc.
Paul Dyrdahl


Appealed to Circuit Court. Reversed January 17, 2002. Appealed to Court of Appeals. Circuit Court decision summarily reversed June 3, 2002, based on respondent Fleming's failure to file a brief.

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uploaded 2001/05/14