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


WILLIAM J SZUSTECKI, Employe

KRIST OIL COMPANY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96200062RH


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits as of week 48 of 1995, if he is otherwise qualified.

Dated and mailed :  April 26, 1996
szustwi.usd : 132 : 1 AA 105  PC 715  ER 464

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that as of week 48 of 1995, the employe was able to work and available for suitable work on the general labor market. In the petition for review, the employer maintains that the employe was not able to work and available for work as he had not advised the employer of his willingness to work more than two shifts per week for the employer. The commission cannot agree.

As correctly noted by the administrative law judge, the statutes require that the employe be able to work and available for work on the general labor market. The fact that the employe could not perform all the night work that the employer had available does not establish that he is not able to work and available for work on the general labor market. Indeed, the employe is able to work during daytime hours. The employer has not established that during any of the weeks at issue the employe refused any daytime hours offered him. While the employer maintains in its petition that the employe was only willing to work two nights per week, the employer testified at the hearing that the employe was scheduled for up to three nights per week. While the employer testified that the employer had other night shifts available, the employe could not work those night shifts because of his medical restrictions. The fact that the employe did not present medical documentation to the employer did not change the restrictions. There is no evidence that the employer questioned the employe's medical situation and in fact the evidence presented at the hearing established that the employe did in fact have a medical restriction which prevented him from working more than three nights per week. Further, the employer testified the employe expressed a willingness to work on day shifts and the employer indicated it offered day shift work when the same was available. The only restriction the employe has on his ability to work is that he may not work more than three nights per week. The majority of work in the employe's labor market is performed during first shift hours.

The employer also maintains that the appeal tribunal decision is nothing more than an affirmation of the incorrect and assumed facts from the initial determination stage. The commission cannot agree. The appeal tribunal decision is based on testimony given under oath at the hearing. The employer was given an opportunity to dispute statements attributed to the employer at the initial determination state. The employer did so. There is not evidence that the appeal tribunal decision is based on those prior statements.

The employer further states that the employe's unemployment is due to the loss of his other work and not because of his employment at the named employer. The commission agrees. The employer maintains that the named employer is being incorrectly and illegally charged for unemployment compensation benefits in violation of sec. 108.07, Stats. The commission cannot agree. At the time the employe initiated his benefit claim, and at the time the appeal tribunal decision was issued, sec. 108.07(3), Stats., relieved a base period employer, such as the named employer, of benefit charges if the claimant worked for that same employer in the benefit year and the claimant earned, in the week claimed, wages equal to or greater than the average weekly wage paid to the claimant in the two base period quarters in which the claimant had the greatest earnings from that same employer. Based on that calculation, the employer was liable for the portion of the employe's weekly benefit payment.

The commission notes that effective in week 15 of 1996, the formula contained in sec. 108.07(3), Stats., has been changed. Beginning the week ending April 13, 1996, rather than taking 3.8% of the total wages paid in the two high base period quarters and comparing wages earned in the benefit year to that calculated average weekly wage, the new formula will compare wages earned in the benefit year with wages paid in the same quarter one year earlier. The average weekly wage paid in the quarter one year prior will be calculated by multiplying the wages paid in that quarter by 6.4%.   The practical effect of the "6.4% Solution" is that a part-time base period employer who continues to provide essentially the same amount of work as it did in the same quarter a year earlier will not be charged. In other words, if the formula standard calculation is met, the employer's proportionate share of benefits will be charged to the balancing account rather than to the individual employer's account. As a result, payment of those benefits will not adversely affect the employer's unemployment insurance tax rate. Department records reflect that effective in week 15 of 1996, the amendment to sec. 108.07(3), Stats., has resulted in a noncharge for any week claimed in the second quarter of 1996 in which the employe earns wages with the named employer of $81.73 or more. In the third quarter of 1996, benefits paid the employe will be charged to the balancing account for any week in which the employe earns $75.74 or more with the named employer. In the fourth quarter of 1996, benefits paid the employe will be charged to the balancing account for any week in which the employe earns $76.74 or more with the named employer.

Finally, the employer's attorney complains that duplicate hearings in this case were "completely outrageous" and a "waste of resources". The commission cannot agree. The law provides for separate hearings on each issue. Further, to the extent practicable, the administrative law judge incorporated testimony and exhibits from other hearings into the hearing being held. Finally, separate hearings ensure that each issue is completely and accurately covered, as was done in this case.

For the above reasons, and reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc :  ATTORNEY DONN ATANASOFF
C/O KRIST OIL COMPANY


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