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

AARON L BARDWELL, Employee

CEDARBURG LUMBER CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05602178WB


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 approximately four years and eight months for the employer, a lumber and building material supplier. He most recently worked as a full-time carpenter's helper, earning $10.65 an hour. His last day of work was February 11, 2005 (week 7).

In early January, 2005, the employer notified the employee and other workers in his department that it would be eliminating their positions once their current work loads were finished. It estimated two or three months more of work but encouraged them to look for positions with another employing unit.

In early February, 2005, the employee accepted a position with a remodeling company. It offered him full time work and a wage rate of $13.00 an hour. The employee provided the employer notice of his quitting and last worked on February 11, 2005. Work with the employer was still available for approximately another month.

The employee worked less than one week with the remodeling company and earned gross wages of less than $500.00. The remodeling company then terminated his employment, claiming it was "not a good fit." The employee initiated a claim for unemployment insurance benefits in week 9 of 2005.

Wis. Stat. § 108.04(7)(a) provides that an individual who quits a job will have all of his or her benefit eligibility suspended unless quitting falls within the exceptions set forth in the statute.

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

Wis. Stat. § 108.04(7)(b) provides that a worker is eligible for immediate payment of unemployment insurance benefits if the department determines that the worker quit his or her employment with good cause attributable to the employing unit. In Butler v. Advantage Advertiser LLC, UI Dec. Hearing No. 02002243BO (LIRC July 5, 2002), the commission explained that the good cause attributable exception

does not require fault in the sense of wrongful motive on the part of an employer. It requires only that it have been within the employer's power not to produce the cause which is deemed sufficiently real and substantial to justify the employee's decision to terminate his employment. See Grace Lutheran Foundation, Inc. v. LIRC, Case No. 88CV642 (Eau Claire Cty. Cir. Ct. 7/26/89).

The employee's decision to seek work and accept the remodeling company's job offer was prompted by the employer's notice that his position was to be eliminated shortly. The employer further encouraged him to seek and accept other employment.

The commission therefore finds that the employee's quitting was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b)

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance benefits beginning in week 7 of 2005, if otherwise qualified.

Dated and mailed June 29, 2005
bardwaa . urr : 150 : 1  VL 1005.01  VL 1007.15

/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 prior to issuing a reversal decision. The reversal is not based on any differing credibility assessment and is based upon the same facts as found by the administrative law judge. The reversal results from the commission's differing legal conclusion as to whether the employee's quitting was with good cause attributable to the employer.

 


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