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

DAN A SMITH, Employee

ALL AMERICAN TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01402736EC


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 as an over-the-road truck driver for a trucking business until May 11, 2001 (week 19). That business was sold to the non-subject employer in this case. The employee began work for the non-subject employer as of May 11, 2001. In both positions he was paid 31 cents per mile. The employee quit work for the non-subject employer on July 16, 2001 (week 29), after nine weeks of employment. The employee quit because he was not getting the number of miles he believed he was promised or that was acceptable to him. With the first employer he averaged 2600 miles per week at 31 cents a mile for weekly earnings of $806.00. In his nine weeks of employment with the non-subject employer he averaged 2000 miles per week at 31 cents per mile for weekly earnings of $620.00.

The issue to be decided is whether the employee terminated his employment for any reason that would permit the immediate payment of unemployment benefits.

The employee experienced more than a 20 percent decrease in weekly pay between his first employment and his position with the employer. The number of miles the employee drove determined how much he earned. The decrease in income compared to the employment he had nine weeks earlier was substantial. The employee would have had good cause to refuse this work given the decrease in mileage and concomitant decrease in income.

The commission therefore finds that in week 19 of 2001, the employee accepted work he could have refused with good cause and terminated that work in week 29 of 2001, with that same good cause and within the first ten weeks of that work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 29 of 2001, if he is otherwise qualified.

If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee for work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed January 17, 2002
smithda . urr : 132 : 1 : VL 1034

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility or demeanor. The commission has not reversed the ALJ based on a differing assessment of witness credibility or demeanor but because it reaches a different legal conclusion.

cc: Green Field Transport Co., Inc.


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uploaded 2002/01/25