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

PHILLIP M WESOLOSKI, Employee

ALTERNATIVE ENTERTAINMENT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04403606GB


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 for about six months as a dish antenna installer for the employer, a satellite dish installation business. The employee originally worked full time for the employer. As of August 28, 2004 (week 35), the employer granted the employee's request to reduce his hours to only Saturday work so that he could attend a training program for dislocated workers. The employee received Trade Adjustment Assistance (TAA) benefits for his training as a diesel equipment mechanic. He worked his scheduled shift on each of the next three Saturdays, August 28, September 4 and September 11 and filed for partial unemployment insurance benefits.

A determination was issued, finding that in the calendar week ending August 28, 2004 (week 35), the employee terminated his employment, (1)  and that his quitting was not within any exception to allow for the immediate payment of unemployment insurance benefits. However, the determination further held that while the employee was enrolled in training under the Amended Trade Readjustment Act of 1974 or in a training program for dislocated workers under 29 USC 2822, benefits could not be denied. That September 23, 2004 determination was not appealed and became final on October 7, 2004.

A friend, who worked for a junkyard, told the employee that he could have more hours of work and a greater income if he stripped cars for the junkyard business, instead of working for the employer. The employee never spoke to any manager or owner of the junkyard business to confirm whether he would actually be offered such employment. Yet, on Friday, September 17, 2004 (week 38), the employee left a recorded voice mail message for the employer's manager, advising the manager that "I won't be coming in. I have a new job." The employee did not report to work for the employer on Saturday, September 18, 2004. The employee was not hired by the junkyard business and he continued to file a claim for unemployment insurance benefits.

On October 21, 2004 (week 43), the employee contacted the employer's manager, at which time the manager agreed to rehire the employee at his former position, only working on Saturdays. The employee resumed working for the employer on Saturday, October 30, 2004 (week 44).

The issue to be decided is whether the employee quit or was discharged from his employment and, ultimately, whether he is eligible for unemployment insurance benefits as of week 38 of 2004.

The employee contended that he did not quit but that he was discharged. The employee's contention cannot be sustained. The employee notified his employer that he had secured other employment and stopped reporting to work for the employer. While he may not have specifically used the words, "I quit," his actions were so inconsistent with the continuation of the employment relationship as to sever it. Also, the fact that the employee was subsequently rehired does not negate the quitting.

Wis. Stat. § 108.04(7) provides that a worker who terminates his or her employment is ineligible for unemployment insurance benefits until four weeks have elapsed since the week of the quitting and until the worker has earned four times his or her weekly benefit rate in subsequent covered wages unless the quitting is within one of the exceptions listed in the statutes.

The employee terminated his employment in anticipation of securing other employment with greater hours and higher wages. Yet the employee was never actually offered such employment and never performed such employment. Thus, his quitting was not to “accept” such employment and, therefore, the quitting does not fall within the exceptions listed within Wis. Stat. § 108.04(7)(p) or Wis. Stat. § 108.04(7)(L). Additionally, no evidence was presented to establish that the employee's quitting fell within any other statutory exception.

In Murphy v. Northwest Hardwoods, Inc., 183 Wis. 2d 205 (Ct. App. 1994), the Court of Appeals held that an employee is exempt from the quit/requalification requirements of the Unemployment Insurance Law when enrolled in approved training. While the current approved training statutory provisions (2)  have been amended/recreated and expanded since the Murphy case, the Unemployment Insurance Department's interpretation remains in line with Murphy;  it provides

The Department cannot impose the 4 x 4 requalifying requirements of 108.04(7)(a) or (8) if the claimant is enrolled in TAA or WIA Dislocated Worker training and

The disqualifications that would have been imposed in these cases are "delayed" while the claimant in enrolled in TAA or WIA Dislocated Worker training. When the claimant is no longer enrolled in TAA or WIA Dislocated Worker training, the claim must be reviewed to determine if the requalifying requirement has been satisfied and to issue a new decision.

UI Benefits Manual, Vol. 3, Part VII, Ch. 13, Sec. II subpart D, p. 4.

Such an approach is also consistent with the federal law, which provides, in relevant part, at 19 USCS § 2296(d):

(d) Eligibility for unemployment insurance. A worker may not be determined to be ineligible or disqualified for unemployment insurance or program benefits under this subchapter [19 USCS § § 2291 et seq.] because the individual is in training approved under subsection (a), because of leaving work which is not suitable employment to enter such training, or because of the application to any such week in training of provisions of State law or Federal unemployment insurance law relating to availability for work, active search for work, or refusal to accept work. . .

In this case, while the record is unclear as to whether the employee's part-time work was "suitable" when compared to the employment that qualified him for the TAA benefits. However, since he was enrolled in TAA approved training at the time of the week 38 quitting, and his quitting was for a reason other than his training, the commission finds that the delay in imposing the requalification applies.

The commission therefore finds that in week 38 of 2004 the employee terminated work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a), this quitting was not for any reason constituting an exception to that section. The commission further finds that in week 38 of 2004, while the employee was enrolled in training under 19 USC 2296 he quit employment and the requalifying requirements of Wis. Stat. § 108.04 (7) shall be delayed while he remains enrolled in TAA training pursuant to Wis. Stat. § 108.04(16)(d).

DECISION

The decision of the administrative law judge is modified to conform with the above findings and, as modified, is reversed. Accordingly, the employee is eligible for unemployment insurance benefits as of week 38 of 2004, if otherwise qualified. When the employee is no longer enrolled in TAA, his claim must be reviewed to determine if the requalifying requirement has been satisfied and to issue a new decision.(3)  The employee's petition not only requested review of the appeal tribunal decision in this matter but also a review of his "case from the beginning" with specific reference to the fact that he was told that he "would not receive weekly benefits because of a form that was not fill[ed] out in time." Given this, the commission forwards a copy of the petition to the hearing office as a late appeal to the determination issued on August 6, 2004 finding that the employee was not qualified for TRA benefits. The hearing office should take action as appropriate to determine whether the employee is entitled to a hearing on the merits of that determination.

Dated and mailed January 21, 2005
wesolph . urr : 150 : 1   VL 1004

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission does not reverse the ALJ based on a different assessment of witness credibility or demeanor but reverses the decision because it has reached a different legal conclusion when applying the law to the facts found by the ALJ.

 

[Ed. Note: The decision is shown here as affected by a subsequent amendment made on March 2, 2005] 
 


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Footnotes:

(1)( Back ) Wis. Stat. § 108.04(7m) provides in relevant part, An employee whose employer grants the employee's voluntary request to reduce indefinitely the number of hours of employment usually worked by the employee voluntarily terminates his or her employment within the meaning of sub. (7).

(2)( Back ) Wis. Stat. § 108.04(16)(d) provides:

If an individual is enrolled under the plan of any state for training under 19 USC 2296 or a plan for training of dislocated workers approved under 29 USC 2822:

1. The department shall not deny benefits under sub. (7) as a result of the individual's leaving unsuitable work to enter or continue such training; and

2. The requalifying requirements under subs. (7) and (8) do not apply while the individual is enrolled in such training.

(3)( Back ) On January 6, 2005, a determination was issued by a department deputy finding that as of December 25, 2004 (week 52), four weeks had elapsed as of week 38 and the employee had earned subsequent covered wages equaling at least four times his weekly benefit rate.

 


uploaded 2005/01/31