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

KERI L SEAGER, Employee

BRYANT PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02000498JF


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 for about 23 months as a drafter, quality control inspector and production scheduler for the employer, a manufacturer of conveyor parts. Her last day of work was December 6, 2001 (week 49).

In November of 2001, the employer raised the employee's pay from $13.80 to $15.00 per hour so that she would perform all of the quality control work, including overtime during late afternoon and early evening hours, in lieu of hiring another person as a part-time quality control assistant. Thereafter, the employer quickly became dissatisfied with the fact that the employee was leaving late in the afternoon if work slackened, resulting in no inspector being available if the employer needed to make a late afternoon or early evening shipment.

The employer's president was dissatisfied with the telephone manner of a customer service worker and believed the employee was suited to the position as it would utilize the employee's communication skills and require little or no overtime. The president spoke to the employee about moving to the customer service position at $14.00 per hour. The president indicated that the change would occur after the first of the year but he wanted her decision right away. The employee indicated that she wanted to think about it.

On November 29, on instructions from the president, the employer's human resources consultant and several other supervisors told the employee that the employer was going to transfer her to the customer service position at $14.00 per hour. The human resources consultant told the employee that the pay rate was higher than what the employer normally paid a customer service person and the employer was not going to negotiate. The employee expressed dissatisfaction with the pay rate and loss of overtime.

After the November 29 meeting the employee asked her immediate supervisor to ask the president to increase the pay offered to $15.00 per hour. Before she received a response, the human resources consultant met with her again on December 6. The human resource consultant again offered the employee the customer service position at $14.00 per hour. The employee replied that she was unwilling to accept the position at the rate of pay offered. The customer service consultant informed the employee that the employer did not have anything else for her. The employee never again performed services for the employer.

The initial issue to be decided is whether the employee quit her employment or was discharged.

In this case, the employer offered the employee work that she refused. The employer informed the employee on November 29 that the pay rate of the offered position was not negotiable. The employee knew that her refusal to accept the transfer to the customer service position would end her employment. The commission therefore finds that the employee quit her employment by refusing the transfer to the customer service position.

The second issue is whether the employee is eligible for unemployment insurance benefits based on her quitting.

Wis. Stat. § 108.04(7)(a) provides that if an employee voluntarily terminates employment with an employing unit, benefit eligibility shall be suspended until four weeks have elapsed since the week of the quitting, and the employee has earned wages in covered employment equaling at least four times her weekly benefit rate, unless the termination was within some statutory exception. In this case, there are three potentially applicable exceptions to the quit disqualification.

Wis. Stat. § 108.04(7)(f) provides that paragraph (a) does not apply if the employee terminated her work because the employee was transferred to work paying less than two thirds of her preceding wage rate with the employing unit, except that the employee is ineligible to receive benefits for the week of termination and the four next following weeks. The employee's quitting does not meet the requirements of Wis. Stat. § 108.04(7)(f), because the customer service position did not pay less than two thirds of her preceding wage rate. It is the wage rate, that is, the rate of pay per unit of time, not wages, that is considered in applying Wis. Stat. § 108.04(7)(f). See, Gustrowsky v. DILHR, No. 152-355 (Wis. Cir. Ct. Dane County Apr. 28, 1977). Thus the loss of potential overtime is not considered when applying Wis. Stat. § 108.04(7)(f).

Wis. Stat. § 108.04(9)(b) provides that benefits cannot be denied an individual for refusing to accept new work if the conditions of that work are substantially less favorable to the employee than existed for similar work in the employee's labor market area. The transfer in this case involved a different wage rate and different duties and therefore constitutes "new work." However, the labor market evidence introduced into the record established that the conditions of the work offered were not substantially less favorable to the employee than existed for similar work in her labor market area. Indeed, $14.00 per hour was at least three dollars more than the substantially less favorable rate for customer service work, and similar positions, in the employee's labor market area.

Wis. Stat. § 108.04(7)(b), provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employee's resignation was caused by some act or omission by the employer which justified the employee's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979). In determining whether a refusal of a transfer was with good cause attributable to the employee lost wages, rather than a decrease in wage rate, can be considered. However, even if the decrease in wages is substantial, good cause attributable to the employer will generally not be found unless the decrease was arbitrary and unreasonable. See, Schensky d/b/a Schensky Builders v. DILHR, No. 145-357 (Wis. Cir. Ct. Dane County May 16, 1975).

The employee did object to the decrease in wage rate and loss of overtime. However, she did not establish she would have suffered a substantial loss in wages. The employee conceded that she did not always take advantage of the overtime available. One reason the employer decided to transfer the employee was because she was not available to perform inspections late in the day. Further the change in job duties justified a change in the wage rate. The employee did not object to the duties of the offered position.

The commission therefore finds that in week 49 of 2001 the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $5,633.00 for weeks 49 through 52 of 2001, and weeks 1 through 16 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment 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 49 of 2001, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $5,633.00 to the Unemployment Reserve Fund.

Dated and mailed July 31, 2002
seageke . urr : 132 : 1 : VL 1005.01  VL 1080.269 

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ who presided at the hearing. The ALJ credited the employee's testimony that she believed she had time to negotiate because the position was not to start until January of 2002. However, the employee testified that at the November 29 meeting she was told that either she took the position offered or would not have a job. Further, while the president indicated the job would begin in January, he told the employee he wanted an answer right away.

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 W. Mohr, Jr.


Appealed to Circuit Court.

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uploaded 2002/08/09