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


TONYA L ERICKSON, Employe

LIFE STYLE STAFFING OF PORTAGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98000834BO


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

Since September of 1997 the employe has worked in a number of short-term assignments as a bindery worker for the employer, an employment agency. She last worked prior to the week at issue in the week ending December 13, 1997 (week 50). Her work for the employer was as a bindery worker earning $7.50 per hour.

On or about January 7, 1998 (week 2), the employer offered the employe a position as an inspector/packager for small plastic items on second shift. The rate of pay was $7.00 per hour and increased after 30 days to $7.50 per hour. In the employe's labor market, a substantially less favorable rate of pay for the position offered the employe, and similar positions, is anything under $7.30 per hour. The employe declined the employer's offer, in part, because she wanted to continue working as a bindery worker for the client she had previously worked for through the employer.

The issue to be decided is whether the employe had good cause for refusing the employer's offer of work.

At the time that the employe was offered work by the employer she had been unemployed less than six weeks. Pursuant to Wis. Stat. § 108.04(8)(d), the employe has good cause for refusing work if the failure relates to work at a lower grade of skill than applied to the employe on one or more recent jobs, and the employe has not been unemployed for more than six weeks. The commission finds that the employe had good cause under Wis. Stat. § 108.04(8)(d) to refuse the offer of work as a packager position involves a lower grade of skill than work as a bindery worker. In addition, pursuant to the certified COED report introduced at the hearing the starting wage offered the employe was substantially less favorable to her than existed for similar work in her labor market. While the wage would have increased after 30 days, many workers obtain increases in wages after 30 days, 60 days, 90 days, or some other designated period of probationary work. The comparison, however, is the starting wage rate with wages prevailing for similar work in the employe's labor market. Accordingly, the employe had good cause for refusing the employer's offer because the wages were substantially less favorable to her than existed for similar work in her labor market.

The commission therefore finds that in week 2 of 1998 the employe refused an offer of work with good cause pursuant to Wis. Stat. § 108.04(8)(d) and Wis. Stat. § 108.04(9)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 2 of 1998, if she is otherwise qualified.

Dated and mailed: June 25, 1998
erickto.urr : 132 : 1 SW 800  SW 806 SW 844

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission reverses the ALJ's decision as a matter of law. The ALJ erred in comparing the employe's wages after a probationary period with the prevailing wage in the employe's labor market. Further, the employe would have had good cause, notwithstanding whether the wage was prevailing, based on the lower grade of skill of the position.

The dissent does not set forth a complete list of what COED considers as similar work to the position offered the employe. Further, the dissent gives wages for Columbia County, not the employe's labor market. The employe's labor market includes not only the county where the employe resides, but also areas that workers in the employe's county normally travel to for work based on commuting patterns. The employe's labor market includes Adams, Columbia, Green Lake, Marquette, and Sauk counties. In any event, the comparison is similar work, not the exact job offered. Further, COED wages reflect what workers are being paid for positions. Thus, by definition it takes into account the long-term employe and the new worker. Further, in determining whether work is substantially less favorable to the worker the commission has never looked at what a particular individual is "worth" based on such things as the past work experience or education of the worker. The commission has always looked at the duties, responsibilities, abilities and knowledge required of the position. Thus, a worker outside of her or his canvassing period could not refuse a hand packer's job and similar work in the employe's labor market, based on wages, if the position paid over $7.30 per hour, whether the worker had 30 years experience or one.

Finally, the majority notes that certain aspects of the COED system are of concern to all three commissioners. However, the majority believes that it is best to work with the system as it is and encourage changes that will address and remedy such concerns. The majority notes that if it were to agree that the COED report in this case was unacceptable, it would not reverse and deny benefits but would remand for expert labor market testimony so that the commission's decision would be based on evidence actually in the record.

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. An employe may refuse a job and still receive benefits under section 108.04(9)"Protection of Labor Standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: ... (b) If the wages, hours (including arrangement and number) or other conditions of work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;..."

This provision is a conformity requirement which initially appeared in the Social Security Act in 1935. The federal government published Unemployment Insurance Program Letter #130 (dated 1/6/1947) which on page 3 explained the purpose of the section as "(T)he second, which prevents denial of benefits if wages, hours, or other conditions are substantially less favorable to the individual than those prevailing for similar work in the locality, was designed to prevent the unemployment compensation system from exerting downward pressure on existing labor standards. It was not intended to increase wages or improve the conditions under which workers are employed, but to prevent any compulsion upon workers, through denial of benefits, to accept work under less favorable conditions than those generally to be obtained in the locality for such work."

The 1947 UIPL described "Similar work," on page 4, in the following way: "Similarity of work can best be judged on the basis customarily used by employers and employes as a result of industrial experience: by occupation and grade of skill. As used in prior legislation, "similar work" has in fact been held to mean work in the same trade or occupation. Superficially this would seem to mean that a job is to be compared with others known by the same title.

However, job titles are sometimes misleading. Different occupations and grade designations are often used in different establishments for the same work. Conversely, the same titles are sometimes used for different kinds of work. The actual comparison of jobs must therefore be made on the basis of the similarity of the work done without regard to title: that is, the similarity of the operations performed, the skill, ability, knowledge required, and the responsibilities involved.

In some occupations the similarity of work cuts across industry lines and the differences in the manner in which the work is done are relatively minor. Bookkeepers and boiler operators, for example are likely to do much the same kind of work whether employed by a grain elevator company, a manufacturing concern or a retail clothing establishment...This essential similarity of work which cuts across industrial lines is generally true of most office, janitorial and clerical occupations and to some degree of unskilled common labor.

In most occupations, on the other hand, there is likely to be considerable variation in the work done in different industries, in parts of industries or even in particular types of establishments within industries. There are marked differences, for example, in the work of a glazier in the construction industry and one in automobile or the furniture industry; and within the furniture industry between a glazier on wooden furniture and one who works on metal furniture. Similar differences exist in the nature of work done by a waiter in a "greasy spoon" and one in a hotel dining room and between the work of a dress saleswoman in the bargain basement and a sales person in a dress salon. Thus, even where there is essential similarity, differences in the nature of the tools used, in the size and quality of the materials worked on, or in the clientele to be served, may create characteristic differences in the work which are important to both employers and employes. Such differences are generally to be found in mass-production-process and service occupations."

At the time UIPL#130 was written, a number of jobs were not covered by minimum wage laws. Page 15 dealt with "Substandard Employment - There are some situations which the prevailing standard provisions are not applicable though the work is unsuitable because the conditions of employment are substandard. Thus, though the conditions prevailing for similar work in the locality will ordinarily be better than the minimum standards set by State and Federal law, investigation may occasionally reveal that the wages, hours and conditions prevailing in a particular occupation and locality are below the applicable legal minimum. In such cases where the conditions are in violation of law, even though they are not substantially less favorable than those prevailing, the claimant has good cause for refusing the job under the general suitable work provisions in the State acts."

With this background in mind, what does the ruling in this case do? It broadly defines similar work to packager to include "all other hand workers, all other helpers, all other machine, all other mechanics, cutting and slicing, extruding and forming, furnace, kiln, oven, grinding and polishing, machine tool cutting, machinery maintenance, production inspectors, refuse and recyclable, textile machine operators and woodworking machine.

The following are the Columbia County wages COED found for each of the categories I checked. The first wage is the significantly less favorable wage and the second is the prevailing wage. All other hand workers - $10.88, $11.75; all other helpers - $8.62, $9.63; all other machine $9.31, $12.03; all other mechanics - $9.30; cutting and slicing - $11.20, $13.75; extruding and forming - $7.31, $8.30; furnace, kiln, oven - $9.16, $10.41; grinding and polishing - $13.50, $15.25; machinery maintenance - $9.36, $12.43; refuse and recyclable - $7.50, $9.25; and woodworking machine - $7.05, $8.05. The category of hand packers for Columbia County paid $5.92, $6.55. Packaging and filling paid $6.55 and $9.30 for Columbia County. The employe was offer pay of $7.00 for the first 30 days. The pay increased to $7.50 and then after 60 days the employe could be a permanent employe with benefits. The employe turned down the job because she preferred not to have a permanent job at Portage Plastics because she wanted to stay at Frontier even though she had no prospect of being hired full-time at Frontier.

These jobs that are included in the COED report have different skill levels in that some require heavy lifting or require the employe to run a machine. The employe would have been an entry level employe and all COED wage figures include all pay so people who have worked at a job category 30 years are included in the report and increase the wage for that class.

The effect of using the broader category is to say we will look at what kind of a wage the employe could make if they explored all the lower level positions. In the past we have always looked at what the job paid not what a person might be worth.

While I realize that the department is in a position that it can not provide labor market testimony at each hearing where that testimony is necessary, I believe that the way COED now groups work under "similar work" is not a reasonable way to go. It could be salvaged if it allowed for separate categories especially for work that is widely available like packagers. I do appreciate that setting up the COED system was a major effort but I do believe that the criticism is necessary for appropriate standards for the unemployment program.

For these reasons, I would reverse and deny benefits in this case because the work was not substantially less favorable to the employe.

Pamela I. Anderson, Commissioner


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