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


JEREMY J ADAMS, Employe

ST. CROIX VALLEY TEMP SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97201190EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (department) issued a decision in this matter. A timely petition for review was filed by the department.

The commission has considered the petition, 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 first began working for the employer, a temporary help employment agency on May 5, 1997 (week 19). The employe indicated when he started working for the temporary agency he would travel as much as 40 miles one way. The employe at the time lived in Menomonie, Wisconsin. The employe's last day of work was July 9, 1997 (week 28). At that time the employe was removed from his last assignment because he had been late two of the three days that he had worked there.

That same day the employe was offered three assignments by the employer. The first assignment was work as a palletizer in Ellsworth or River Falls, at $7.51 per hour, 40 hours per week to last indefinitely. The second offer was work as a machine operator at a foam products business in New Richmond, at $7.55 per hour, 40 hours per week to last indefinitely. The third offer was work as an injection molding machine operator at a plastics injection business in River Falls, paying $7.50 per hour, 40 hours per week to last indefinitely. The employe did not accept any of the assignments offered because he was hoping to obtain other assignments through other agencies that were closer to home. The employe was interested in moving closer to Minneapolis and finding work closer to that city. As mentioned, the employe was living in Menomonie at the time these assignments were offered. Menomonie to Ellsworth or River Falls is at least 40 miles one way and from Menomonie to New Richmond is at least 45 miles one way. Additionally, as mentioned when the employe began working for the employer he indicated he would travel as much as 40 miles one way.

Based on the Conditions of Employment Database (COED) an information technology system developed and maintained by the department, the ALJ made several findings. Because there is no occupation listed as a palletizer, the ALJ categorized that job as a laborer. Based on the employe's zip code at the time of the hearing (54751), the ALJ found that the wage offered of $7.51 for a palletizer/laborer while less than prevailing ($8.38), was still greater than the substantially less favorable wage of $6.59. The commuting distance for the claimant's home zip code for laborer jobs is 9.13 miles. The ALJ also checked the job occupation of assembler, class C and found that the wage offer of $7.51 was greater than both the prevailing wage of $7.04 and the substantially less favorable wage of $5.68. The commuting distance for the claimant's home zip code is 11.74 miles.

For work as a machine operator in the New Richmond area the wage offered by the employer of $7.55 was less than the prevailing wage of $8.39, but greater than the substantially less favorable wage of $6.66 per hour. The commuting distance for the claimant's home zip code is 9.13 miles.

Finally, for work as an injection molding operator in the River Falls area, the wage offer of $7.50 per hour was less than both the prevailing wage of $10.01 and substantially less favorable wage of $9.22. The commuting distance for the claimant's home zip code is 10 miles exactly.

Based on the above labor market statistics, the ALJ found that two of the assignments offered wages that were greater than substantially less favorable wages. However, the ALJ noted that the employe refused the three job assignments because he was no longer willing to commute up to 40 miles for a job assignment. The ALJ noted that the labor market statistics reflect distances that were substantially less than 40 miles that workers in his area would be willing to commute for any of the positions offered. Consequently, the ALJ found that although the employe quit when he refused to accept any of the three assignments, the employe would have had good cause for not accepting the work in the first place and that consequently he quit within ten weeks of starting that work with the same good cause within the meaning of Wis. Stat. § 108.04(7)(e). The ALJ then found the employe eligible for benefits.

The department petitioned the commission for review of the ALJ's decision. The department requests that the commission reverse the ATD arguing that the employe's quitting does not fall within the same good cause exception found in Wis. Stat. § 108.04(7)(e). Specifically, the department argues that the Court of Appeals case of Cornwell Personnel Associates v. LIRC, & Robert E. Linde, 175 Wis. 2d 537 (Ct. App. 1993), prohibits an application of Wis. Stat. § 108.04(7)(e) to temporary help employes who refuse subsequent job assignments, even if they occur within the first ten weeks of beginning the employment relationship with the temporary help agency. Linde at pg. 550.

Since Linde, both the department and the commission have followed this ruling which holds that the "quit/labor standards" exception found in Wis. Stat. § 108.04(7)(e) applies only to the first assignment a temporary help worker receives upon starting "new work" with a temporary help employer. Quitting by refusing or leaving the second and any other subsequent assignments is not covered under a 108.04(7)(e) analysis unless the second and subsequent assignments themselves constitute new work. Linde at pg. 550. The Linde court noted that a second assignment could be new work if it is made after an indefinite layoff, citing Allen-Bradley v. DILHR, 58 Wis. 2d 1, 6 (1973). Furthermore, the commission has also recognized that a subsequent assignment, even if made immediately, would be "new work" triggering the direct application of labor standards, if the "duties, terms or conditions of the work offered by the employer are not consistent with the existing contract of hire between the employer and the worker." See Keith P. Leighton v. Cornwell Personnel Associates, Ltd., (LIRC 6/29/94), citing Kabacinski v. Cornwell Personnel Associates, Ltd., (LIRC 1/8/90).

However, under the facts found by the ALJ, Wis. Stat. § 108.04(7)(e) is inapplicable. The assignments were subsequent offers but not new work within the meaning of labor standards. Nor do the facts reveal an inconsistency with the original contract of hire since the employe agreed to commute 40 miles one way.

Notwithstanding this, the employe may still prove he quit with good cause attributable to the employer under Wis. Stat. § 108.04(7)(b). See Linde at pg. 547. The only reason for the employe's decision to refuse the assignments was the commuting distance. However, when the employe initially began working for the temporary help agency he indicated he would be willing to travel up to 40 miles. Two of the job assignments were within this 40 mile limit. Although the labor statistics themselves indicate that the commuting distance for the wage offered by each assignment was no greater than 12 miles, commuting is generally not considered a labor standard and more importantly, the employe had previously accepted assignments throughout May and June within this 40 mile radius. Thus, it is difficult to conclude that the employer changed the terms or conditions of the existing contract of hire since the employe initially accepted work assignments within a 40 mile radius. Consequently, the employe was unable to establish that his quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04 (7)(b).

The commission therefore finds that in week 28 of 1997, the employe terminated work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a), and that this quitting was not for any reason constituting an exception to that section.

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because any overpayment assessed against the employe was the result of a departmental error, and the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 28 of 1997, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. Recovery of the overpayment is waived, pursuant to Wis. Stat. § 108.22(8)(c).

Dated and mailed: March 27, 1998
adamsje.urr : 135 : 1   BR 335.01  SW 844

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge as credibility was not an issue. Based on essentially the same facts as found by the administrative law judge, the commission concludes that Wis. Stat. § 108.04(7)(e) is inapplicable in this type of employment relationship pursuant to the court's ruling in Cornwell Personnel Associates v. LIRC, & Robert E. Linde, 175 Wis. 2d 537 (Ct. App. 1993). The commission further examined the employe's reasons to determine whether they met an exception under Wis. Stat. § 108.04(7)(b) or Wis. Stat. § 108.04(7)(f). Concluding that the employe's reasons do not, the commission finds that the employe's quitting failed to meet any statutory exception to the quit/disqualification found in Wis. Stat. § 108.04(7)(a).

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS


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