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


JOSEPH R JAMES, Employe

HERITAGE WAFERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98601399WK


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about one year as a wrapper operator for the employer, a snack food business. His last day of work was December 12, 1997 (week 50).

The employe worked on the third shift. During the week of December 8, 1997, workers on the third shift were told that orders were down and that the third shift was no longer needed. The employer told the workers that they might be needed in about a week. Workers were instructed to call in each day to make sure there was no work available.

The employe called in each day but no work was available. On December 18, he did not call in to determine whether work was available. There was work available on that day. The employer contacted the employe and indicated that it needed to speak with him. The employer told the employe to consider whether or not he wanted to continue working for it. On December 22 the employe notified the employer that he was quitting. He decided to quit because for several months he had not gotten 40 hours of work a week and therefore was going to go look for work elsewhere.

The initial issue is whether the employe voluntarily terminated his employment with the employer or was discharged. The second issue is whether he is eligible for benefits based on his separation from employment.

The commission finds that the employe did not quit his employment but was discharged by the employer. The employer discharged the employe on his last day of work when it placed him on an indefinite layoff. The employe and other workers were laid off because orders were down, a situation not within the employer's control. For this reason, the employer could not and did not apprise the employe of a definite return to work date. While the employer directed the employe to call in to determine whether work was available, the employe was not obligated to do so. The employe's decision to call in was a voluntary one and did not serve to preserve the employment relationship for unemployment purposes. Since the employer severed the employment relationship when it laid the employe off, the employe could not "quit" that already severed relationship. Finally, since the employe was laid off due to a decrease in orders, his discharge was not for misconduct connected with his employment.

The commission therefore finds that in week 50 of 1997 the employe did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 50 of 1997 the employe was discharged from his employment and not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified as to the week of issue and, as modified, is reversed. Accordingly, the employe is eligible for benefits beginning in week 50 of 1997, if he is otherwise qualified.

Dated and mailed: May 29, 1998
jamesjo.urr : 132 : 1 VL 1007

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission does not disturb any credibility determination made by the ALJ but reverses the ALJ's decision because it reaches a different legal conclusion when applying the law to the facts.


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