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

DON R DE BAERE JR, Employee

READY SET SERVICE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05608529MW


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 about one year as a "set agent" for the employer, a firm that provides inventory maintenance for a large retail company. His last day of work was October 31, 2005 (week 45).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

In September of 2005, the employer advised the employee that the employee and other workers would be required to change their hours of work every Wednesday. The employee had always worked from 6:00 a.m. to 2:15 p.m., Monday through Friday, and the employer was now requiring him to work from 3:00 p.m. to 11:00 p.m. every Wednesday. The employer indicated that there would be certain exceptions made, including situations where individuals had outside employment that would conflict with the change in schedule. The employee notified the employer that he would not be able to work the new hours on Wednesdays, because he had his own business and met with certain customers on those days during the second-shift hours proposed by the employer. The employer did not agree to grant the employee an exception to the requirement that he work the new, second-shift hours on Wednesdays. The employee's store manager gave him 21 days to comply with the new schedule or his employment would be terminated. The employee did not comply and the employee's employment then came to an end.

The employee was aware that if he refused to comply with the employer's directive, that he work second shift on Wednesdays, that he would no longer be employed. It was the employee's decision not to work the second-shift hours that resulted in his unemployment. As such, the employee's actions were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes, the employee quit. See, Grace Lutheran Foundation Inc. v. State of Wisconsin, LIRC and Flug (Case No. 88-CV-642, Wis. Cir. Ct., Eau Claire Co., July 26, 1989).

The employee quit because the employer's transfer to second-shift hours would interfere with the employee's family business. Wis. Stat. § 108.04(7)(a) provides that an individual who quits a job will have all of his or her benefit eligibility suspended. The only exceptions are those stated in the law.

Wisconsin Stat. § 108.04(7)(b) provides an exception to the quit disqualification if the employee quits work with good cause attributable to the employer. In this case, the employee accepted work with the employer at times that did not conflict with his ability to work for his family business. The employer unilaterally changed the conditions of his employment when it transferred him to work second shift on Wednesdays. The commission further notes that the employee would have finished work at 11:00 p.m. on Wednesday and would have had to report to work at 6:00 a.m. on Thursday, so, in addition to the change interfering with his other work on Wednesdays, it would have been inconvenient on Thursday mornings.

The commission therefore finds that in week 45 of 2005, 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 as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 45 of 2005, if otherwise qualified.

Dated and mailed February 8, 2006
debaedo . urr : 145 : 4  VL 1005.01 VL 1080.26

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission modified the ALJ's decision to reflect its conclusion that the employee was aware that his job would end if he did not agree to work second shift on Wednesdays, and his refusal to comply constituted a voluntary termination by him of the employment relationship.

The employer argues, in its petition for commission review, that the employee signed an agreement at the time of hire that acknowledged that the employer reserved the right to change the employee's hours and duties. However, as noted by the ALJ, the language in the contract does not specifically indicate that it was contemplated that the employer might change the shift the employee was working, and that language might reasonably be understood to mean that the employer might require workers to start an hour earlier or later.

The employer further asserts that the employee told the department on November 10 that he was no longer self-employed as of September 2, 2005. This was the initial statement to the adjudicator and is not in the record. However, it is in the file. The employee stated that he told his boss, prior to October 10, that he was self-employed. The whole tone of the statement is that the employee was self-employed up until the point of discharge, and shortly after his discharge lost or quit his self-employment. The employee did not indicate at the hearing that this statement was accurate and therefore, the most logical conclusion is that the employee either stated the incorrect month for his self-employment or the adjudicator typed the incorrect month.

cc: Personnel Planners, Inc.


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