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

BRUCE R AILEY, Employee

CORPORATE EXPRESS OFFICE PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608886MW


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 the employer, an office products distribution business, for six months as a warehouse supervisor on second shift. His last day of work was September 9, 2004 (week 37).

On July 8, 2004, the employer had a discussion with the employee in which he was told that one of the expectations for a supervisor is that he would be flexible about working different shifts. The employee asked the employer to be more specific, and the employer explained that it wanted him to work third shift. The employee said he had never been told he would have to do that, and that he was not going to.

There was no further discussion about the matter until September 7, at which point the employer told the employee that starting September 13, he would report for work on third shift. The employee remained adamant that he would not do so, and stated that he intended to continue reporting on second shift, consistent with his offer letter from the employer.

The following day, September 8, 2004, the employer told the employee that it had reviewed the employee's offer letter, but that it did not say anything about a specific shift. The employer indicated that it expected the employee to move to his new start time. The employee again refused and insisted that he would remain on second shift, to which the employer responded that if the employee did so it would lock him out of the building and take away his pass key.

The next morning, the employee spoke with the human resources manager and offered to go on third shift temporarily, provided he could be given a definite end date. The human resource manager directed the employee to talk to the employer's vice president of operations. When the employee spoke with the vice president of operations he was told he was discharged.

The question to decide is whether the employee quit or was discharged and whether he is eligible for benefits based upon his separation from employment.

The commission agrees with the administrative law judge found that the separation from employment occurred because the employee refused to transfer to third shift. An employee who refuses a shift transfer is considered to have quit. Potts v. CPP Pinkertons (LIRC, March 15, 2002); Winters v. Farnam Meillor Sealing Systems (LIRC, Dec. 9, 1998).

The employee was hired to work second shift. While the employer may have told the employee at the time of hire that it expected him to be flexible, the employer did not specifically explain that this could entail an indefinite reassignment to third shift, and the employee had no reason to believe this was the case. The employee understood that he might be asked to cover for another manager on a different shift on a short-term basis, but the July 8 conversation was the first time the employer indicated it wanted to reassign him indefinitely to third shift. The transfer to third shift was a change in the existing contract of hire that constituted new work.

Wisconsin Stat. § 108.04(9)(b) states that benefits shall not be denied to any otherwise eligible individual for refusing to accept new work if the wages, hours, including arrangement and number, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. The Department of Workforce Development has quantified this standard with what is known as a "quartile" system under which, if the condition in question prevails in less than 25% of the jobs in the particular job category and in other similar work in the labor market area, then the work is considered substantially less favorable than prevailing work in the locality. Here, certified labor market evidence presented at the remand hearing indicates that less than ten percent of similar work in the employee's labor market is performed on third shift. Thus, the new work offered was substantially less favorable, and the employee had good cause to quit rather than accept a transfer to such work.

The commission therefore finds that in week 37 of 2004, the employee voluntarily terminated his employment with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 37 of 2004, if he is otherwise qualified.

Dated and mailed July 20, 2005
aileybr . urr : 164 : 8  VL 1080.261

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge who held the original hearing in order to obtain the benefit of her impressions of the credibility and demeanor of the witnesses. The administrative law judge had no demeanor impressions to impart. The commission finds credible the employee's testimony that he was not hired with the understanding he could be reassigned to third shift, and it concludes that the employer's unilateral decision to transfer him to third shift provided him with good cause to quit.

 

cc: Corporate Express - Wauwatosa, WI


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