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

KYLE Q BROUNTIE, Employee

MIDWEST LABOR INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02000573MD


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 considered the petition and the positions of the parties, and reviewed the evidence submitted to the administrative law judge. Based upon its review, the commission issued a decision affirming the appeal tribunal decision on April 16, 2002. Subsequent to the issuance of the commission's decision, the employee filed a request for reconsideration. Based on that request the commission has conducted further review of the evidence and now makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a staffing agency, for three days as a stone cutter. The employee was paid $10 an hour. His last day of work was November 14, 2001 (week 46), when he quit to accept a construction job paying $20.58 an hour. The employee was laid off after only two days on the new job, and he initiated a claim for benefits in week 47 of 2001.

Immediately prior to his work for the employer, the employee worked in weeks 45 and 46 for another temporary agency, doing maintenance work at a pay rate of $8 an hour. He was completely unemployed in weeks 39 through 44. Prior to that, the employee worked for a tavern from about week 24 through week 38 at a pay rate of $8 an hour, and as a mailing machine operator in week 36 at a pay rate of $10.50 an hour. From approximately week 24 through week 30 the employee worked in a construction job paying $20.58 an hour and, from October of 1999 through about week 22 of 2001, he held a construction job paying $20.34 an hour.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. The issue presented in this case is whether the employee is eligible for benefits based upon his voluntary separation from the employer.

Wis. Stat. § 108.04(7)(e) provides an exception to the quit disqualification if the employee accepted work which could have been refused with good cause under Wis. Stat. § § 108.04(8) or (9) and then terminated such employment with the same good cause within the first ten weeks after starting work. The statute provides that the employee has the same good cause for voluntarily terminating work if the employee could have failed to accept the work under Wis. Stat. § 108.04(8)(d) when it was offered, regardless of the reason articulated by the employee for the termination. Wis. Stat. § 108.04(8)(d) provides an employee with good cause for failing to accept work if the department determines that the failure involved work at a lower grade of skill or significantly lower rate of pay than applied to the employee on one or more recent jobs, and that the employee had not yet had a reasonable opportunity in view of labor market conditions and the employee's degree of skill, but not to exceed six weeks after the employee became unemployed, to seek a new job substantially in line with the employee's prior job skill and rate of pay.

Certified labor market evidence presented at the hearing established that the employee's wages as a stone cutter for the employer, $10 an hour, were not substantially less favorable than existed for similar work in the employee's labor market. However, the employee had been unemployed only six weeks (weeks 39- 44) subsequent to the end of his last high-paying construction job. While the employee was outside of his six-week canvassing period at the time he accepted the position with the employer, the statute does not provide that failure to accept work because of a lower grade of skill or substantially lower pay constitutes good cause only if that failure occurs within six weeks, and the commission applies a sliding scale approach to determine whether an employee had good cause to refuse an offer of work after the six-week canvassing period. Harnly v. Plant Marketing LLC (LIRC, April 30, 2002);  DILHR v. LIRC, 193 Wis. 2d 391, 401 (Ct. App. 1995). Here, the majority of the employee's base period wages were earned in construction jobs which paid over $20 an hour, and it is clear that the employee's regular employment is as a construction worker. Although the employee was obligated to lower his sights somewhat after six weeks of unemployment, he was not yet expected to lower his wage expectations to $10 an hour when he had been unemployed for less than seven weeks. Under all of the circumstances, the commission believes the employee would have had good cause to refuse the job at Midwest Labor and that his quitting of that employment after only three days should not disqualify him from benefit eligibility.

The commission therefore finds that in week 46 of 2001 the employee terminated work with the employer, and that his quitting was with the same good cause, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the commission, dated April 16, 2002, is set aside, and the decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 46 of 2001, provided he is otherwise qualified.

Dated and mailed May 2, 2002
brounky . urr : 164 : 1 SW 800 SW 806

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

In his request for reconsideration the employee has drawn the commission's attention to his interim earnings. Upon consideration of those interim earnings, it appears that the employee's total duration of unemployment was only six weeks, placing him just outside of his canvassing period at the time he accepted the work in question. When applying a sliding scale approach, the commission concludes that the employee would have had statutory good cause for refusing the work in question and that, therefore, his decision to quit that employment after only three days should not serve to disqualify him from receiving benefits.

The employee's request for reconsideration encompasses a second decision, Brountie v. Spherion Atlantic Enterprises, LLC (LIRC, April 16, 2002.)  However, as was explained in a note attached to that decision, the employee's benefits were suspended from week 30 through week 46 of 2001 based upon a separate determination, and that suspension was not lifted until week 47 of 2001. Given this circumstance, the employee would not be eligible for benefits until after the separation occurring in week 46, even if the commission were to find a qualifying quit in week 38. Consequently, the commission sees no reason to revisit its decision regarding the separation from Spherion Atlantic.

NOTE: The commission did not confer with the appeal tribunal about witness credibility and demeanor. The commission's reversal is as a matter of law.

cc: Midwest Labor (Madison, Wisconsin)


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