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

JOYANN M BENZ, Employee

JOHNSON SCHOOL BUS SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01606441WB


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 six years as a part-time school bus driver for the employer, a transportation company. Throughout her employment the employee has worked during the school year and the summer session. In the summer of 2001 the employer scheduled the employee to work the five-week summer session (weeks 26-30). The employee could have driven 10 one-hour routes each week at a rate of $14.00 per hour/route. The employee notified the employer that due to a number of personal commitments including medical appointments for herself and her significant other, she was unable to perform all available work. The employee agreed to be a stand-by driver and the employer agreed that she could perform such work. The employee was called periodically and did perform about 13 total hours of work during the five-week summer session. The employee filed a benefit claim on June 15, 2001 (week 24).

The issue to be decided is whether the employee is eligible for benefits as of week 26 of 2001.

Wisconsin Statute § 108.04(1)(a), provides that eligibility for benefits shall be reduced for any week in which the employee is called with due notice by her current employing unit to perform work available and is unavailable to perform, or unable to perform, some or all of such work. The commission finds that in weeks 26 through 30 of 2001, the employee was given due notice to perform work and failed to form some of such available work. The employee asked to be relieved of her regular schedule for a definite five-week period. The employer granted that request and allowed the employee to work a reduced schedule. The employer needed an individual on the route that was able to work on a regular and consistent basis. There is no exception to the "due notice" provision of Wis. Stat. § 108.04(1)(a). The law does not inquire into the reason the employee failed to perform all available work, only whether the employee failed to perform all available work.

Wisconsin Statute § 108.04(1)(a) further provides that the amount the employee could have earned performing all work available is treated as wages, and benefits payable are computed by using the method set forth in Wis. Stat. § 108.05(3)(a). Under Wis. Stat. § 108.05(3)(a), the first $30.00 of wages is disregarded and the employee's weekly benefit payment is reduced by 67% of the remaining amount. Sixty-seven percent of $110.00 is $73.70. The employee's weekly benefit rate of $180.00 is therefore reduced by $73.70 leaving $106.30. Pursuant to Wis. Stat. § 108.05(9), benefits for a week of partial unemployment shall be rounded down to the next lowest dollar. The employee is therefore entitled to benefits in the amount of $106.00 in each of weeks 26 through 30 of 2001.

The commission therefore finds that in weeks 26 through 30 of 2001, the employee was with due notice called on by her current employing unit to perform work available and was unavailable for, or unable to perform, some or all of such available work, within the meaning of Wis. Stat. § 108.04(1)(a).

The commission further finds that had the employee performed all of the work available in weeks 26 through 30 of 2001, she could have earned wages in the amount of $140.00 resulting in a weekly benefit payment totaling $106.00, within the meaning of Wis. Stat. § § 108.02(26) and 108.05(3).


DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is reversed. Accordingly, the employee is eligible for $106.00 in unemployment insurance benefits in each of weeks 26 through 30 of 2001, if she is otherwise qualified.

Dated and mailed October 22, 2001
benzjo . urr : 132 : 8 : AA 110

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission disagrees with the administrative law judge's legal conclusion that the employee quit her employment within the meaning of Wis. Stat. § 108.04(7m). That statutory provision requires that the employer grant the employee's voluntary request to reduce "indefinitely" the number of hours usually worked by the employee. In this case the employee did not ask to reduce "indefinitely" the hours she normally worked. This was not an indefinite or permanent change in the number of hours worked by the employee and therefore Wis. Stat. § 108.04(7m) does not apply. The employee was unavailable for work otherwise available to her for a specific period of time and it is appropriate that her benefits be reduced by the amount of wages she could have earned had she performed all work that was available with the employer.


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uploaded 2001/10/29