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


JOHN A MILLER, Employe

ABCO BUILDING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97607240MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for one and a half years as a carpenter's apprentice for the employer. His last day of work was August 19, 1997 (week 34).

Following his last day of work, the employe contacted the employer and asked to be transferred to another work site because he was not getting along with his father, a co-worker at the employer's. The employer said there was no other work available. The employe asked to be laid off and the employer agreed. The employe was not replaced as the job was winding down. The work ended the following week.

The initial issue to be decided is whether the employe quit or was discharged.

The ALJ found that the employe quit because other work remained with the employer which he could have done if he had not been laid off. However, the commission has recently reaffirmed the position that when the employer agrees to lay someone off at his request, the employe is discharged. Daniel Jandourek v. Rogers Electric, UC Hearing No. 97401954GB (LIRC Dec. 5, 1997). In this case, the employe did not say that he would not continue to work if the employer refused a layoff. The employer could have denied the request and kept him on the job if it wished. It chose to lay him off when he asked it to do so. The employer's later layoffs and its decision not to replace the employe reinforces the inference that it had no need for the employe's services when it agreed to lay him off.

The employer did not assert that it discharged the employe for any reason amounting to misconduct.

The commission therefore finds that in week 34 of 1997, the employe was discharged but that the discharge was not for misconduct connected with the employe's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 34 of 1997 if otherwise qualified.

Dated and mailed: February 5, 1998
millejo.urr : 178 : 1  MC 626

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the appeal tribunal prior to reversing its decision. Its decision is not based on any differing assessment of witness credibility but rather the commission arrives at a different conclusion when applying the law to the same facts as those found by the ALJ.


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