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

LESIA A SMITH, Employe

WOODMANS FOOD MARKET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97402711AP

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, except that it makes the following modifications:

1. Delete the sixth paragraph under the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW, and insert therefor:

"At the hearing, it was established that the substantially less favorable rate for the position offered the employe, which is appropriately categorized as a courtesy clerk/sack person, was $8.43 per hour or less."

2. Delete the tenth paragraph under the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW, and insert therefor:

"While the employer had a valid business reason for demoting the employe due to her mistakes, that is not controlling. The labor market analyst testified that the substantially less favorable rate of pay for a position similar to that offered the employe, a courtesy clerk/sack person, is $8.43 per hour. While the employer's wage rate was in the prevailing range for that particular position, it was not prevailing for similar work."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 40 of 1997, if otherwise qualified.

Dated and mailed: April 7, 1998
smithle.umd : 132 : 1 SW 844 SW 875.27 VL 1059.18

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe quit her employment with good cause attributable to the employer. The employe quit her employment when she refused a demotion from cashier to courtesy clerk. If an employe is assigned work that involves a decrease in rate of pay and the rate of pay is substantially less favorable to the employe than exists for similar work in the labor market, the employe has good cause attributable to the employer for quitting. See Cornwell Personnel Associates, Ltd. v. LIRC, 175 Wis. 2d 537 (Ct. App. 1993). The employer objects to the finding that the pay rate for the courtesy clerk position was substantially less favorable to the employe than existed for similar work in the employe's labor market.

The commission remanded this matter for additional testimony by a labor market analyst regarding the prevailing and substantially less favorable rate of pay for the position offered the employe and similar work. The commission has modified and affirmed the appeal tribunal decision based on such remand testimony. The employer argued that it paid the highest wage for a courtesy clerk/sack person position in the area. However, that is simply not the question. The inquiry is whether the wage was prevailing for the position offered and similar work.

Similar work is defined as work in the claimant's labor market which has substantially equivalent duties and responsibilities and which requires substantially equivalent skills, abilities, and knowledge. Positions need not have identical duties to be considered similar. As long as the jobs involve substantially equivalent skills, competence, dexterity, training, education, physical capacity, and responsibility, the work will be considered to be similar. This means that work may be considered similar although performed in different industries. See A. Frankenthal & Sons, Inc. v. DILHR & Hendricks, No. 150-200 (Wis. Cir. Ct. Dane County Jan. 10, 1977). Further, the comparison may result, as it does here, in a substantially less favorable rate in excess of what is paid for the particular job offered. Of course, if it was established that the prevailing wage bears no relation to wages generally paid for the kind of work being compared, the commission could not find that the employe was justified in refusing an offer of similar work. Such was not established in this case.

The labor market analyst gave his expert opinion that the substantially less favorable rate of pay for the work offered and similar work was $8.43 per hour. While the commission has reservations regarding whether the category of "similar" work is overly broad in certain cases, and in this case in particular, the commission is constrained by the record adduced at the hearing. The employer did not present any contrary expert testimony as to what is more appropriately viewed as "similar" work, let alone what the prevailing wage rate for such work is in the employe's labor market. The employer presented hearsay testimony indicating that it had surveyed selected employers in its area and that it paid a higher wage than other grocery stores for identical work. While the employer may pay a high rate if the comparison is to "identical" work (bargained for or not), that does not establish that it pays a prevailing rate for "similar" work. Given the purpose behind the unemployment insurance law, it is more appropriate to risk that the similar work category is overbroad, thus slightly elevating prevailing wages, than to risk that it is overly restrictive, thus depressing wages. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision as modified.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent.

An employe may refuse a job and still receive benefits under section 108.04(9)"Protection of Labor Standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: ... (b) If the wages, hours (including arrangement and number) or other conditions of work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;..."

"This provision is a conformity requirement which initially appeared in the Social Security Act in 1935. The federal government published Unemployment Insurance Program Letter #130 (dated 1/6/1947) which on page 3 explained the purpose of the section as "(T)he second, which prevents denial of benefits if wages, hours, or other conditions are substantially less favorable to the individual than those prevailing for similar work in the locality, was designed to prevent the unemployment compensation system from exerting downward pressure on existing labor standards. It was not intended to increase wages or improve the conditions under which workers are employed, but to prevent any compulsion upon workers, through denial of benefits, to accept work under less favorable conditions than those generally to be obtained in the locality for such work."

The 1947 UIPL described "Similar work", on page 4, in the following way:

"Similarity of work can best be judged on the basis customarily used by employers and employes as a result of industrial experience: by occupation and grade of skill. As used in prior legislation, "similar work" has in fact been held to mean work in the same trade or occupation. Superficially this would seem to mean that a job is to be compared with others known by the same title.

However, job titles are sometimes misleading. Different occupations and grade designations are often used in different establishments for the same work. Conversely, the same titles are sometimes used for different kinds of work. The actual comparison of jobs must therefore be made on the basis of the similarity of the work done without regard to title: that is, the similarity of the operations performed, the skill, ability, knowledge required, and the responsibilities involved.

In some occupations the similarity of work cuts across industry lines and the differences in the manner in which the work is done are relatively minor. Bookkeepers and boiler operators, for example are likely to do much the same kind of work whether employed by a grain elevator company, a manufacturing concern or a retail clothing establishment...This essential similarity of work which cuts across industrial lines is generally true of most office, janitorial and clerical occupations and to some degree of unskilled common labor.

In most occupations, on the other hand, there is likely to be considerable variation in the work done in different industries, in parts of industries or even in particular types of establishments within industries. There are marked differences, for example, in the work of a glazier in the construction industry and one in automobile or the furniture industry; and within the furniture industry between a glazier on wooden furniture and one who works on metal furniture. Similar differences exist in the nature of work done by a waiter in a "greasy spoon" and one in a hotel dining room and between the work of a dress saleswoman in the bargain basement and a sales person in a dress salon. Thus, even where there is essential similarity, differences in the nature of the tools used, in the size and quality of the materials worked on, or in the clientele to be served, may create characteristic differences in the work which are important to both employers and employes. Such differences are generally to be found in mass-production-process and service occupations."

At the time UIPL#130 was written, a number of jobs were not covered by minimum wage laws. Page 15 dealt with:

"Substandard Employment - There are some situations which the prevailing standard provisions are not applicable though the work is unsuitable because the conditions of employment are substandard. Thus, though the conditions prevailing for similar work in the locality will ordinarily be better than the minimum standards set by State and Federal law, investigation may occasionally reveal that the wages, hours and conditions prevailing in a particular occupation and locality are below the applicable legal minimum. In such cases where the conditions are in violation of law, even though they are not substantially less favorable than those prevailing, the claimant has good cause for refusing the job under the general suitable work provisions in the State acts."

With this background in mind, what does the ruling in this case do? It broadly defines similar work to baggers to include:

"all other freight stock & material movers; all other hand workers; all other helpers, laborers, and material movers; all other machine operators and tenders; all other material moving equipment operators; all other metal and plastic cutting, forming, fabricating or processing operators; chemical equipment tender; cleaning, washing, and pickling equipment operators, and tenders; coating, painting, and spraying machine operators and tenders; conveyor operators and tenders; cooking machine operators, and tenders - food, and tobacco; cooling and freezing equipment operators and tenders; crushing, grinding and mixing operators, and tenders; cutters and trimmers/hand; cutting, and slicing machine operators and tenders; extruding, forming, pressing and compacting machine operators, and tenders; hand packers, and packagers; roofers helpers; laundry, and dry cleaning machine operators and tenders, excepting pressing; machine feeders, and off bearers; meat, poultry, and fish cutters, and trimmers/hand; packing, and filling machine operators, and tenders; painting coating, and decorating workers; production inspectors, testers, graders, sorters, samplers, and weighers; refuse, and recycleables collectors; separating, filtering, clarifying, and skill machine operators, and tenders; stevedores except equipment operators; vehicle washers, and equipment cleaners."

At the first hearing the pay range for these jobs was from $4.94 to $16.96 an hour. This is not the same kind of work with such a wide range of wages. The effect of these figures would be to make most grocery store jobs, restaurant work and department store work substantially less favorable to the individual. While the department witness testified it was concerned that certain kinds of work had been held down in wages because of discrimination especially women, this would have the effect of increasing wages.

The following are the wages COED found for each of the categories I checked. The first wage is the substantially less favorable which means it is in the lowest 25% of the wages and the second figure is the prevailing wage or the wage at the 50% level. Machine operator- $9.18, $10.90; roofer helper- $11.48, $13.87; meat packager- $7.93, $9.14; hand cutter - $9.53, $10.89; stevedore except equipment operators - $8.09, $9.27; material movers - $9.56, $10.94; chemical equipment operator - $11.54, $13.15; laborer- $8.98, $10.60; laborer movers and all other - $7.91, $9.20.

These jobs have different skill levels in that some require heavy lifting or require the employe to run a machine. The bagger job is a low level of skill and has very little responsibility.

The employe was offered a bagger job at $7.10 an hour according to the store manager. The employe believed that she would make the beginning wage for bagger which was $7 per hour. The employer brought evidence of what other employers in the area paid for utility clerks. Sentry paid $4.60-$5.60 and hour. Cub Foods paid from $5.50-$5.80 per hour. Piggly Wiggly paid from $5.15 to $5.75. Kohl's paid from $5.25 to $5.75 and hour. The department witness conceded that substantially less favorable for the specific occupation would be $5.75 and hour but it would be $8.43 an hour for his very broad definition of similar work.

The effect of using the broader category is to say we will look at what kind of a wage the employe could make if they explored all the lower level positions. In the past we have always looked at what the job paid not what a person might be worth.

Another disturbing fact about this case is that the wages the bagger would have been paid were bargained for wages under a labor agreement. The effect of this decision would be to say that the union bargained for substandard wages.

While I realize that the department is in a position that it can not provide labor market testimony at each hearing where that testimony is necessary, I believe that the way COED now groups work under "similar work" is not a reasonable way to go. It could be salvaged if it allowed for separate categories especially for work that is widely available like baggers. I do appreciate that setting up the COED system was a major effort but I do believe that the criticism is necessary for appropriate standards for the unemployment program.

For these reasons, I would reverse and deny benefits in this case because the work was not substantially less favorable to the employe for similar work in her locality.

Pamela I. Anderson, Commissioner

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