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


MARK A NELSON, Employe

ASPLUNDH TREE EXPERT CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98200533EC


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 as a tree trimmer for the employer, a tree trimming service. His last day of work was February 24, 1998 (week 9). He terminated his employment on February 26, 1998 (week 9).

During the first three months he worked for the employer, the employe was at a work site about six miles from his home. He was laid off for about a month. At the time of his recall, he was assigned to a job site some 108 miles from his home. He was then placed on another job site about 190 miles from his home. He was unable to make arrangements to care for his three year old during evening hours. His ex-wife worked a second shift job and was unable to care for the daughter during evening hours. Because of these difficulties, the employe terminated his employment.

The first issue to be determined is whether the employe's return to work following his layoff constituted new work or whether the employment relationship with the employer continued during his one month lay off.

Under the unemployment insurance statute a definite layoff does not sever the employment relationship as an indefinite layoff does. In Hemstock Concrete Products v LIRC, 127 Wis. 2d 437, 441-2, 380 N.W.2d 387 (1985), the supreme court held a specific recall date is not necessary to reestablish an employment relationship if that relationship was never severed in the first place. While there is a presumption that a layoff severs the relationship, that presumption may be overcome by evidence that at the time of the layoff, there existed an assurance, expressed or implied by circumstances that the work and wages would be resumed at an ascertainable time in the not too distant future.

The commission determines that in this case such an assurance was given. The employe was told his layoff would last about a month. It did last about a month. Therefore the layoff was a definite layoff and did not sever the employment relationship. Consequently his return to work was not new work and the application of Wis. Stat. § 108.04(7)(e) is inappropriate.

The remaining issue is whether the employe had good cause attributable to the employer or any other reason for quitting which would permit the immediate payment of benefits.

Following his layoff, the employer transferred him to a job site 190 miles from his home. Although he accepted the employment initially with the understanding that traveling was a part of the job, he had worked most of his tenure six miles from his home. The employe had never been called upon to travel. If the employer had not unexpectedly lost the contract the employe had been working on, he would have continued to work close to home. Following the employe's hire, his personal circumstances changed and he was responsible for a minor child in the evenings and unable to be away overnight. The 190 mile commute was excessive given the customary commute for such work is 22 miles. The employe could have continued working for the employer locally but needed to be home at night to care for his child. He could not do so if the job was 190 miles away. The employer's actions in sending him to a work site 190 miles away left him no reasonable alternative but to quit.

The commission therefore concludes that while the employment relationship continued during the employe's definite layoff, he quit with good cause attributable to the employer when the employer unilaterally changed the terms and conditions of the employment as the employe had actually experienced them by transferring him to a work site 190 miles from his home.

The commission therefore finds that in week 7 of 1998, the employe terminated work with the employer 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 modified and as modified is affirmed. Accordingly, the employe is eligible for benefits as of week 9 of 1998, if he is otherwise qualified.

Dated and mailed: July 28, 1998
nelsoma.urr : 178 : 1 VL 1007.01  VL 1080.266

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has modified the administrative law judge's decision to reflect that the employment relationship continued during his layoff. However, the employe remains eligible for benefits following his quitting for the reasons stated above.


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