WAYNE R ALLEN, Employee

A & S WELDING COMPANY, Employer

An administrative law judge (ALJ) for the Unemployment Compensation Division of the Department of Industry, Labor and Human Relations 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 as a welder from July 13, 1994 (week 29) for the employer, a manufacturer of storage tanks. His last day of work was July 20, 1994 (week 30). He did not return to work thereafter because he sustained an on-the-job injury on July 18, 1994, and was unable to return to work until he had a doctor's release.

The issue which must be decided is whether the employe voluntarily terminated his employment or was discharged by the employer.

After the employe's last day, he was released for light duty work beginning on October 6, 1994 (week 41), subject to a kneeling limitation and a lifting restriction. The employer offered to rehire the employe in his former job subject to his limitations at a different location during the second-shift hours, so that he could continue receiving therapy or work hardening during the daytime hours. When the employe called the employer's sales manager before October 6, 1994, to advise her that he did not have an automobile to get to the new location, he was advised that he should check the bus schedule, or with a second-shift foreman who lived close to his home for a ride. He was provided with two days to make arrangements for his transportation and was requested to report for work on October 10, 1994. Nevertheless, he did not do so, nor did he give any notice to the employer that he was not returning.

Although the employe alleged that he did not voluntarily terminate his employment, he had the opportunity to return to work at his former position beginning on October 6, 1994. He conceded that he would have returned to work except for the lack of transportation. His contention that he was never informed that he should check with the foreman for a ride was not credible. Under the circumstances, his action in failing to talk to the foreman was inconsistent with a continuation of the employer-employe relationship and constituted a voluntary quitting.

At the hearing, a labor market analyst testified that a wage range of between $7 - $9 was in the lowest quarter of wages for a welder. Seventy percent of-welders worked on first shift, twenty-two percent on second and seven percent on third. The average commuting time is 20 minutes, and the maximum time is 55 minutes.

An employe who quits a job is generally ineligible for unemployment benefits unless he or she requalifies. The statutes provide an exception to the quit disqualification if the employe accepted work which he could have refused with good cause and he terminated such employment with the same good cause within the first ten weeks after starting work. There is a further exception to the quit disqualification if the employe accepted work which he could have refused under sec. 108.04(9), Stats., and terminated the employment within the first ten weeks after starting the work. Sec. 108.04(9), Stats., provides that a claimant shall not be denied benefits for refusing to accept new work if the wages, hours (including arrangement and number), or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. In the present case, the wages, hours and other conditions of employment were clearly substantially less favorable to him than those prevailing for similar work in his labor market. The employe's rate of pay was $8.50 per hour, and the work that he was offered was on the second shift. While the employe did not specifically mention shift or wages to the employer as a reason for refusing the work the commission has generally held that:

If a worker quits a job with a nonprevailing wage, the job is substantially less favorable to the individual regardless of the reason the worker quits because in any given situation a higher or prevailing wage is always preferable. Brian Cavanaugh v. Willowglen Academy, (Commission Decision September 1, 1992); Unemployment Compensation Benefit Manual, Volume 3, Part VII, Chapter 1, page 48, June 1992.

The more difficult question in this case is whether the employe's ten weeks continued to run during the period in which he was unable to work because he was injured. The department's policy as expressed in the Unemployment Compensation Benefits Manual Vol. 3, Part VII, Chapter 1, page 47, states:

The employe must provide his/her reason for quitting. Where the reason for quitting is one that might have been good cause for refusing the job in the first instance, the adjudicator must determine whether it would have been good cause, and whether the quit was within the first ten weeks.

NOTE: For the purpose of this provision, a week that the employe is in layoff status does not count as one of the 10 weeks, however, a week in which the employe was employed on commission only and performed wage earning services but earns no wages, would count as one of the 10 weeks.

The purpose of the department's policy seems to be that if the employe is actually working, and services are actually performed, and the employe is thereby able to try out the position, then work time is counted toward the ten weeks regardless of whether wages are earned. Conversely, if a worker is unable to work, then even though he may still be receiving some kind of benefit or compensation from the employment relationship he or she is not able to try out the job to find out whether it is suitable for him or her. The commission believes that physical inability is similar to being on layoff, as the employe was rendered unable to work but not of his own volition. Apart from allowing a worker a real opportunity to try out the nonprevailing work, the wages, hours and other conditions might change in a case such as this because if a worker is injured, he or she will often return to work with restrictions, and therefore be unable to physically perform the original work. Further, to hold that the ten weeks were running while the employe was off due to a worker's compensation injury places the employe in the position of either severing the employment relationship before the ten weeks run, and thereby potentially jeopardizing certain worker's compensation benefits, or continuing the employment relationship and thereby foregoing the quit exception of sec. 108.04 (7)(e), Stats.

The commission therefore finds that the employe accepted work in week 29 of 1994 which he could have refused with good cause, and that he voluntarily terminated that employment in week 41 of 1994, with the same good cause and within ten weeks after starting work, within the meaning of sec. 108.04(7)(e), Stats.

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 41 of 1994, if he is otherwise qualified.

Dated and mailed July 11, 1995
allenwaw . urr : 145 : 3  - VL 1034

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: If the employer is subject to the contribution requirements of the Wisconsin Unemployment Compensation Law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

The commission did not confer with the administrative law judge regarding witness credibility and demeanor, but reversed because it reached a different legal conclusion from the facts found by the administrative law judge.

PAMELA. I. ANDERSON, CHAIRMAN, Dissenting

I am unable to agree with the result reached by the majority herein. The employe quit because he did not have transportation to the job. The employer had told him to contact his foreman to see about a ride but the employe failed to contact the foreman. The employe never raised the issue of second shift work as a reason for the-quit so the commission would not find that work substantially less favorable to the employe.

This is an unusual case because the employe worked and then was off work for more than ten weeks due to an injury. The employe never said that he was refusing the job because of the wages or any conditions of the job itself. The employer was willing to accommodate his work restrictions. This is not a case where the employe tried the job and then decided to refuse it because it did not work out. The employe was not in a layoff status while he was collecting workers compensation. I would agree with the administrative law judge that the employe quit not within any exceptions which would provide for the immediate payments of benefits. Therefore., I would affirm the appeal tribunal decision.

Pamela I. Anderson, Chairman

cc: Attorney Alan L Derzon

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