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


DOLORES M CORONA, Employe

SCHLOTSKYS DELI, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97402937AP


On November 20, 1997, the Department of Workforce Development issued an initial determination which held that the employe quit her employment but not for a reason allowing immediate eligibility for unemployment insurance. The employe timely filed a request for hearing on the adverse determination, and hearing was held on December 17, 1997 in Appleton, Wisconsin before a department administrative law judge. On December 22, 1997, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition. Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately four weeks as a part-time baker for the employer, a food sales concern. Her last day of work was October 26, 1997 (week 44), after which she quit the employment because of difficulty in getting her supervisor to contact the employer to see whether the employe could begin working full time for the employer. The commission believes the employe's quit falls under Wis. Stat. § 108.04(7)(e), and so reverses the appeal tribunal decision.

When the employe was first hired, she spoke with the owner and her supervisor about the possibility that she would be laid off from her work with her full-time employer in the near future. The owner told her that she would have work available every Saturday and Sunday, and that she could work as many hours as she wanted if she were laid off from her other employment.

In the week before October 26, the employe told her supervisor she had been laid off by her full-time employer. She asked if she could begin working full time for this employer. Her supervisor responded that she would have to discuss the matter with the owner. The employe then worked the weekend of October 25 and 26. She again asked her supervisor if she could switch to a full-time schedule, and her supervisor responded that she had not yet had the chance to speak to the owner, but would do so as soon as she could. Her supervisor then promised to call the employe and let her know if full-time work was available. The supervisor also indicated, though, essentially that she was against the employe's working full time.

On Friday, October 31, the employe stopped in the restaurant in an attempt to speak to her supervisor. Her supervisor was not on the premises, but another manager brought her her paycheck. She asked the manager to tell her supervisor she had been in to ask about the possibility of switching to a full-time schedule. The employe did not report to work or call to report her absence on Saturday, November 1 or Sunday, November 2. On November 1, the owner attempted to call her at her home, but received no response. The employe never again contacted the employer.

The record includes a Certified Expert Report on Labor Market Conditions. That report indicates that only 3.30 percent of work similar to the employe's baker work, in the employe's labor market area, consists of part-time work of 20 hours per week or less.

First, the commission agrees with the administrative law judge that the separation from employment was a quit by the employe. The employe reasonably was frustrated by her supervisor's failures to have contacted the owner on the employe's behalf but, nonetheless, the employe was the moving party in the separation by what essentially was her subsequent abandonment of the employment.

Generally, an employe who quits his or her employment must meet certain requalification requirements before again being eligible for unemployment insurance. The relevant exception in this case is Wis. Stat. § 108.04(7)(e), which allows an employe to accept work which could have been refused under Wis. Stat. § 108.04(9), if the employe quits the work within the first ten weeks after starting the work. Wis. Stat. § 108.04(9) provides that a claimant shall not be denied benefits for refusing to accept new work if the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. In this case, 78.16 percent of similar jobs in the employe's labor market are full-time jobs; by contrast, as indicated above, only 3.30 percent of similar work in the labor market consists of part-time work of 20 hours per week or less. This makes the offer of work, as to the part-time hours, substantially less favorable to the employe than hours prevailing for similar work in the locality, within the meaning of Wis. Stat. § 108.04(9). By operation of Wis. Stat. § 108.04(9), the employe could have refused the work in the first instance, so she also may quit that work within ten weeks, under Wis. Stat. § 108.04(7)(e).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if otherwise qualified. There is no benefit overpayment for weeks 44 and 45 of 1997, as a result of this decision. The commission notes, finally, that when an employe's voluntary termination falls under Wis. Stat. § 108.04(7)(e), by operation of 108.04(7)(h) the department charges to the fund's balancing account benefits paid to an employe that are otherwise chargeable to the account of an employer subject to the contribution requirements of Wis. Stat. §§ 108.17 and 108.18.

Dated and mailed: March 19, 1998
corondo.urr : 105 : 1 VL 1034 SW 844

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission accepted the administrative law judge's fact finding, as far as it went. With regard to the applicability of Wis. Stat. § 108.04(9), the administrative law judge considered only that the wage offered was "prevailing" under that section. There is no indication that she reached the issue whether the hours of the offered work also were "prevailing" under the statute.


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