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

JANNA L BENNETT, Employee

PORT CITY BAKERY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06400718AP


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 three days as a production line worker for the employer, a manufacturer of pizza crusts. Her last day of work was November 2, 2005 (week 45), when she quit her job.

The issue to be decided is whether the employee quit for any reason that would permit the immediate payment of unemployment benefits.

The employee quit her job because the employer did not provide her with full-time hours of work during her first three days of employment. She contended that she quit with good cause attributable to the employer because the employer did not give her the hours that she was promised when she was hired. However, the employer was unable to give the employee full-time work in her first week of employment because there were short-term problems with the production line. The employer temporarily reduced the employee's hours of work during the first few days of her employment. Shortly after the employee quit, the production line went into full operation and, had the employee continued working, she would have worked full-time hours.

Wisconsin Statute § 108.04(7)(a) provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. Pursuant to Wis. Stat. § 108.04(7)(e), the quit disqualification of Wis. Stat. § 108.04(7)(a) does not apply if the employee accepted work which could have been refused under Wis. Stat. § 108.04(9) and terminated the employment within the first ten weeks after starting the work. Wis. Stat. § 108.04(9) provides that a claimant shall not be denied benefits 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. If the condition in question is found in less than 25 percent of the similar work in the labor market, then the condition is "non-prevailing."

The employee was hired to work second-shift hours. In the employee's labor market less than 20 percent of similar work is performed on second shift. The employee did not raise the arrangement of hours as a reason for quitting. However, the commission noted in Schulenberg v. Yellow River, Inc., UI Dec. Hearing No. 98003804MW (LIRC March 23, 1999):

"The prevailing conditions of work standard applies to all denials of benefits for refusal of offers of or referral to new work, regardless of whether the claimant raises the issue and regardless of his reasons for refusing the job or the referral." Memorandum No. 324 to District Examiners (Industrial Commission of Wisconsin, August 2, 1950). This language, from the commission's predecessor, tracks federal language in what continues to be the federal government's most definitive pronouncement on labor standards, its January 6, 1947 Program Letter (No. 130). There, the Department of Labor states that the standards in question are minimum standards, that they apply to all denials of benefits for refusal of offers of or referrals to new work regardless of the reasons for refusing the job in question. By operation of Wis. Stat. § 108.04(7)(e), this standard also applies to quits within ten weeks of starting the employment in question.

The commission therefore finds that the employee accepted work in week 45 of 2005, that could have been refused because the wages, hours (including arrangement and number), or other conditions of the work were substantially less favorable to the employee than those prevailing for similar work in the locality, and that the employee voluntarily terminated that work in week 45 of 2005, within ten weeks after starting work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 45 of 2005, if she is otherwise qualified. Pursuant to Wis. Stat. § 108.04(7)(h), if the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed June 16, 2006
benneja . urr : 132 : 1 : SW 844  VL 1034

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal of the ALJ's decision is not based on the credibility of the witnesses.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/06/20