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

GERALD T MARSCHNER, Employee

HOLTON BROTHERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01402550AP


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 a tuck-pointer and caulker on a seasonal basis for approximately 3 years for the employer, a building restoration business. The employee worked without incident during his tenure with the employer.

The initial issue is how to characterize the employment separation, which occurred on June 25, 2001 (week 26).

On Friday, June 22, 2001, around noon, foreman Jerry Schmidt, informed the employee that his next assignment the following Monday (June 25) would be in Illinois. The employee informed Mr. Schmidt that he could tell Mike Worzalla, the employee's supervisor that he would quit before he would go to Illinois. Mr. Schmidt informed the employee that he would not tell Mr. Worzalla that and that if the employee wanted to, the employee should personally call Mr. Worzalla. Mr. Schmidt had no further conversation with the employee. Mr. Schmidt was unaware prior to or during his conversation with the employee on Friday, June 22, that the employee's vehicle was experiencing transmission problems. The employee admitted that he did not tell Mr. Schmidt on Friday, June 22 that he was experiencing transmission problems with his vehicle. The employee also admitted that he did not tell Mr. Schmidt about his vehicle's transmission problems while he was working on the previous job.
Shortly after the conversation between Mr. Schmidt and the employee, the employee telephone Mr. Worzalla. The employee informed Mr. Worzalla that he would not be working in Illinois. Mr. Worzalla replied that the work would only be for one week and that he did not have anything else to assign the employee. The employee did not mention that his vehicle was experiencing transmission problems. Mr. Worzalla gave the employee the address of where he was to report to on Monday, June 25, in Illinois and hung up the phone. Approximately 30 to 60 minutes later the employee called Mr. Worzalla again and informed Mr. Worzalla that he could not work in Illinois. When Mr. Worzalla inquired why, the employee replied "I am not working in Illinois." At no time did the employee mention that his vehicle was experiencing transmission problems or that it became inoperable. The conversation ended when Mr. Worzalla hung up the phone. Mr. Worzalla did not inform the employee that if he did not report to work in Illinois his employment would end.

On Monday, June 25, the employee called the employer and personally spoke with the president of the company. The president inquired why the employee was not working and the employee replied, "I am not working in Illinois." The president then told the employee that if he was not working in Illinois he was to turn in his safety equipment. The employee did not mention any transportation problems when discussing the Illinois assignment with the president. The president could not recall whether he ended the conversation by hanging up but believes he may have done so.

The initial issue to be decided is whether the employee voluntarily terminated his employment or whether the employer discharged him. The remaining issue is whether the employee's separation from employment was for a reason that permits the immediate payment of unemployment insurance benefits.

An employee may be found to have voluntarily terminated his or her employment despite the fact that the employee has never expressly stated "I quit." An employee may demonstrate an intent to leave his or her employment by word or manner or action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119 (1980) and Dentici v. Industrial Commission, 264 Wis. 181, 186 (1993).

Despite informing the employer on at least three separate occasions that he would not report to a job assignment in Illinois on Monday, June 25, 2001, the employee failed to mention transportation problems as a reason for his unwillingness and/or inability to report to his assignment in Illinois. Rather, the employee did not report to work in Illinois because he disliked traveling to that location and had previously threatened to quit when assigned work there. It is undisputed that other workers for the employer made such threats when assigned to work in Illinois. However, when the employee informed the foreman, his supervisor and the president of the company that he would not go to Illinois, the employee demonstrated an intent to terminate his employment and did so when he failed to report to work on Monday, June 25, 2001.

The remaining issue is whether the employee's reason for quitting provides any exception to the general quit disqualification found at Wis. Stat. § 108.04(7)(a). The commission does not believe the employee's assertions that transportation problems prevented him from reporting to work in Illinois. The employee failed to mention this problem to either Mr. Schmidt or Mr. Worzalla on Friday, June 22, 2001, leading the commission to conclude that his vehicle was not inoperable. Even if his vehicle were inoperable, the employee made no attempt to seek transportation to the employer's premises prior to Monday June 25, to see if the employer could transport him to the Illinois assignment.

The commission therefore finds that in week 26 of 2001, the employee terminated work with the employer but not with 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 amounting to a total of $7924 for which he is not eligible and to which he is not entitled, with in the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employee 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), be cause although the over payment 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 decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 26 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 employee is required to repay the sum of $7,924.00 to the Unemployment Reserve Fund. 

Dated and mailed  April 5, 2002
marscge . urr : 135 : 1 MC 626 MC 640.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission conferred with the administrative law judge (ALJ) as to her credibility impressions and assessment of those who testified. The ALJ found that the employee testified credibly when he said transportation problems prevented him from reporting to work on Monday, June 25, 2001. The ALJ also found the employee credible when he testified that his attempts to explain his transportation problems were thwarted during his phone conversations with the employer. The commission credits the employer's witnesses when they testified that the employee made no mention of transportation problems as the reason for his unwillingness to report to work in Illinois. Also, the employee made no effort to report to the employer's location in Grafton, Wisconsin prior to the June 25 assignment in an attempt to see if the employer could transport him to Illinois. The inconsistency in the employee's testimony as well as his general unwillingness to travel to Illinois satisfies the commission that the employee was the moving party in the employment separation. Finally, the employee's unwillingness to work in Illinois does not constitute any statutory exception to the quit/disqualification found at Wis. Stat. § 108.04(7)(a).

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

cc: Attorney William J. Farrell


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uploaded 2002/04/19