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

BRUCE W ZEPNICK, Employee

ENGINEERED PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401748GB


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 twice for the employer, first for five months (7/20/02-12/20/02) until he was laid off for an indefinite period, and again from 4/14/03-4/23/03 (week 17).

He worked during both these periods of time in the same Service Technician position. Since an indefinite layoff is considered a discharge for unemployment purposes,(1)  his re-employment effective April 14, 2003, would be considered new work. Allen-Bradley Co. v. DILHR, 58 Wis. 2d 1, 205 N.W.2d 129 (1973) ("new work" includes indefinitely laid off employees who are recalled as well as new job applicants.)

The first issue is whether the separation which occurred on April 23, 2003, was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

After he began his second period of employment on April 14, 2003, the employee requested several days or partial days off, and missed a day of work when he overslept. On April 23, 2003, the president of the employer asked him if he had any problems and questioned his attitude toward his work. The employee responded by saying, "Fuck this shit. I don't need this." and by starting to leave. The president asked him if he was quitting, and the employee responded, "You figure it out." The employee then kicked open the shop door, kicked over the garbage, left the shop, and never reported back to work.

Clearly, the employee's actions were inconsistent with the continuation of the employment relationship, and constituted a quit.

The next issue, then, is whether the employee would have qualified for the exception to the quit disqualification set forth in Wis. Stat. § 108.04(7)(e) because he quit work within 10 weeks which he would have had good cause to refuse pursuant to Wis. Stat. § 108.04(9)(b). There is no other exception to the quit disqualification arguably applicable here.

The commission, after concluding that the record of the original hearing had not been developed sufficiently in regard to this issue, remanded this matter to the department on January 9, 2004, for the purpose of "providing the parties the opportunity to offer evidence as to the duties the employee was assigned/expected to perform when he was hired in April of 2003, including whether the employee was qualified as a plumber/pipe fitter, and was assigned/expected to perform plumber/pipe fitter duties independently; and for the taking of expert labor market testimony based on this evidence."

At the remand hearing, which the employer did not attend, the employee testified that, when he was re-hired in April of 2003, he did no pipefitting work, but was hired back "to paint and sandblast." The employee also testified that he serviced pumps and gearboxes; disconnected pipes and reinstalled them after they were rebuilt; and "was never assigned to perform any pipe fitter duties independently" when he returned in April of 2003.

The employee was not competent to perform, ever performed, or would ever be assigned to perform, duties as an independent or lead plumber/pipe fitter.(2)

The pipefitting-related duties the employee was competent to perform, and had performed in the past and could be assigned to perform in the future, consisted of disconnecting pipes and reinstalling them after they had been rebuilt, and other laborer/technician duties associated with the installation and repair of pipes.

Consistent with the expert labor market evidence offered at the remand hearing, the painting/sandblasting work the employee was assigned to perform when he was re-hired in April of 2003 is properly classified as painting/construction/ maintenance work, for which, the top of the lowest quartile of wages is $10.39 per hour; and the removal and reinstallation of parts as maintenance/mechanic work, for which the top of the lowest quartile of wages is $12.42 per hour.

When he was rehired in April of 2003, the employee was paid $13.50 per hour. The employee would not have had good cause, due to the level of pay or otherwise, for failing to accept this work.

The commission therefore concludes that, in week 17 of 2003, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in the amount of $3,463.00 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1); and that waiver of this overpayment is not required under Wis. Stat. § 108.22(8)(c), because, although the overpayment did not result from the fault of the employee, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2003 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. The employee is required to repay the sum of $3,463.00 to the Unemployment Reserve Fund.

Dated and mailed February 16, 2005
zepnibr . urr : 115 : 1   VL 1034

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established, upon an augmented hearing record, and upon a differing interpretation of the relevant law.



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Footnotes:

(1)( Back ) A. O. Smith Corp. v. DILHR, 88 Wis.2d 262, 276 N.W.2d 279 (1979)

(2)( Back ) The definition of the plumber/pipe fitter job category (exhibit #1-original hearing), contemplates the layout/assembly/installation of pipe systems, supports, and related hydraulic and pneumatic equipment, including selecting proper types and sizes of pipes, and determining required setup according to blueprints and specifications.

 


uploaded 2005/02/22