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

GARY S FLOWERS, Employee

THE SCHARINE GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04003084JV


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 about four years, most recently as a technician for the employer, a steel fabrication business. His last day of work was April 27, 2004 (week 18).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee worked about three years and six months for the employer at a customer location in Janesville, Wisconsin. This was one of the employer's largest customers. In October 2002, the customer complained about the employee, but it was two of the customer's workers who had caused problems and not the employee. The customer verbally raised other complaints about the employee to the employee's supervisor. The supervisor discussed them with the employee and stated that if problems persisted, the employee would no longer be allowed to continue working for this important customer.

In February 2004, the employee was in an accident that resulted in his car being totaled. Thereafter, a co-worker gave the employee a ride to the Janesville work site.

On March 15, 2004, the Janesville customer sent the employer a complaint about the employee. The customer alleged that the employee over the "past few weeks" spent most of his time visiting with the customer's workers, but this allegation was untrue. The customer also criticized the employee for specific conduct on March 15, but the employee did nothing wrong. The employee's supervisor brought the allegations to the employee's attention on or about March 25, 2004. The employee truthfully replied that he spoke with the customer's workers but only on the workers' breaks or if the workers came to the employee and initiated conversations. The employee denied any wrongdoing with regard to the remaining allegations. The supervisor indicated that the supervisor "would have to take action and it would not be good" for the employee.

On April 15, 2004 (week 16), the employee's supervisor told the employee that the employee had the option of being terminated or accepting a permanent transfer to a work location in Whitewater. The employee had worked for the employer at the Whitewater site earlier in his employment. Initially, the employee refused the transfer because he lacked transportation to Whitewater. The supervisor indicated that the employer had a lot invested with the employee and that he would like the employee to accept the work in Whitewater. Later that same day, the employee accepted the transfer. The employer allowed the employee to retain his pay of $12.30 an hour, even though the wage included a differential for working evenings in Janesville whereas the employee worked first shift in Whitewater.

The employee worked three days at the Whitewater location using a car borrowed from his sister. His sister then took her car. The employee had no means of transportation to Whitewater. Accordingly, on April 27 (week 18), 2004, the employee telephoned his supervisor saying he lacked transportation to the Whitewater location. The supervisor said the employer then "would need to terminate his employment."

The employee has lived four years in the same area in Beloit, Wisconsin. He traveled about 20 miles to the Janesville work site. He traveled about 30 miles to the Whitewater work site. For a wage of $12.30, the distance workers customarily travel for similar work in the employee's labor market area is 20.03 miles.

The employee accepted the transfer. It was his responsibility to find transportation to work. His unavailability to work in Whitewater due to lack of transportation is considered a quitting for unemployment purposes.

The next issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The mere transfer from one work site to another does not constitute new work. The transfer in this case added 10 miles each way to the employee's daily commute. The commission finds that there was no material change in the conditions of the employee's work and the transfer was not to "new work." Although the commute to the Whitewater plant exceeded the normal commute in the employee's labor market, the employee did not refuse the transfer or quit his work with the employer because of the length of the commute. Therefore he did not demonstrate good cause attributable to the employer for terminating his employment. The employee quit because he lacked personal transportation to the Whitewater site. His reason for quitting does not constitute an exception to the quit disqualification.

The commission therefore finds that in week 18 of 2004, the employee voluntarily terminated his 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 $6,251.00 for weeks 20 through 38 of 2004, 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 18 of 2004, 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 $6,251.00 to the Unemployment Reserve Fund.

Dated and mailed September 30, 2004
flowega . urr : 132 : 1 :  VL 1080.266

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

 

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility or demeanor. The commission has not reversed the ALJ's decision based on the credibility of witnesses but upon reaching a different legal conclusion from that reached by the ALJ.

 

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.I. 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.


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uploaded 2004/10/07