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

JACALYN K SERTICH, Employe

SEARS ROEBUCK & CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602482MW

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 for approximately one and a half years as a customer service representative for the employer, a retail store. The employe's last day of work was January 31, 1998 (week 5) when she voluntarily terminated her employment.

The issue to be decided is whether the employe's quitting was for any reason that would permit the immediate payment of benefits.

The employe resigned from her position when she was not permitted to work a schedule that her previous supervisor authorized or to continue in her current schedule.

On January 13, 1998, the employe approached a Human Resources Specialist and indicated that she could not continue working a "split shift" because she was getting "burned out." The employe indicated that her supervisor, who had recently been separated from his employment with the company, had previously approved a new schedule for her. The employe would work from 6:30 a.m. to 2:30 p.m. (with no lunch) three days per week, and 10:30 a.m. to 7:00 p.m. two days per week. The employe needed to be off at 2:30 p.m. in order to pick up one child from school. When she worked the "split shift," the employe left in time to pick the child up and then returned later to continue the second part of her shift.

The Human Resource Specialist consulted with a regional Human Resources Specialist and indicated that working from 6:30 a.m. to 2:30 p.m. with no lunch would not comply with labor laws which require such a break. As a result, the employe's schedule was rejected by the employer. The employer offered the employe a demotion to part-time status, which would result in, at most, an 81 cent per hour decrease in pay. She would no longer be a member of supervisory staff. She would work between 30-35 hours per week. This was unacceptable to the employe, since she felt her transfer from a supervisor position to a general staff position would undermine morale in the department. She also did not want to take a cut in pay. As a result, the employe resigned from her position.

When a worker voluntarily terminates his or her employment, there is a legal presumption that the worker is ineligible to receive unemployment compensation benefits. The employe must establish that the reason or reasons for the quitting fall within one of the statutory exceptions under Wis. Stat. § 108.04(7), which allow for immediate payment of benefits.

The courts have held that to constitute "good cause for quitting, the employe's reason must relate to some real, substantial and unreasonable act on the part of the employer. Worachek v. Koch Brothers, Inc. & Ind. Comm., Circuit Court, Case No. 104-461, June 2, 1961. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965). Furthermore, it must be a reason that would justify her in becoming unemployed rather than continue working. Hur v. Radio Shack Tandy Corp. & DILHR, Dane County Circuit Court, Case No. 153-082, June 6, 1977.

In this case, the employer and employe disagreed over the employe's schedule. In general, workers are required to work the schedule given to them by the employer. The employe wanted to adopt a schedule which did not provide for a lunch break. If the employer adopted such a schedule, it would be out of compliance with laws which require such a break. As a result, it could not adopt such a schedule. The employer further would not allow the employe to continue to work the split shift, but offered her only the demotion. The employe had been working the split shift since she started her full-time employment with the employer. While it is clear that the employe could not adopt her schedule of choice because it did not allow for a lunch, the employer, after initially granting her request to work that schedule then informed her that she could no longer work that schedule. It then informed her that she could no longer work her original schedule either, but that she would have to take a demotion, with loss of pay, hours and supervisory duties. The employer's actions amounted to a real, substantial and unreasonable act on the part of the employer. Under the circumstances, the commission must conclude that the employe had good cause for refusing the demotion, which thereby resulted in her loss of employment.

The commission therefore finds that in week 5 of 1998 the employe terminated her work 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 employe is eligible for benefits beginning in week 5 of 1998 if she is otherwise qualified. This matter is remanded to the department for an investigation and if the department determines it is necessary, a determination as to the employe's availability for work given her need to take time off during the day.

Dated and mailed: August 28, 1998
sertija.urr : 145 : 1 VL 1005

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but rather reached a different legal conclusion when applying the law to the facts found by the ALJ. In this case, both parties agreed that the employer would not allow the employe to continue in her prior position with the employer. Further, the commission cannot conclude that the employe's request for hours which she preferred indicated that she would not continue to work the hours she had been working since the start of her full-time employment with the employer. The dissent suggests that the majority believes that the employe should have been given back her split shift. In the first place, she had not stopped working the original shift, but was informed she could not continue in that shift and would be demoted. In addition, the commission finds that the circumstances in this case taken together, not merely the employer's failure to allow her to continue in her original position, gave the employe good cause for quitting. There is nothing in the record which would support a conclusion that the employer determined that the employe would not continue her original schedule if she was not allowed her preferred schedule. The employer's Human Resources Specialist testified that Mr. Stoddard was not comfortable with the employe working a split shift and that no other workers were on a split shift. The employe testified that she informed the employer that she would continue working the split shift until school ended. At the time the employe said she could not continue working the split shift she had been given permission by her supervisor to work her preferred schedule. She never made a similar comment after being informed that she could not work the preferred schedule rather she indicated she would work her original schedule.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The majority seem to believe that the employer should have given the employe her split shift back. The problem with this position is that the employe had told the employer that she could not continue to work the split shift because she was burned out. The employer tried to accommodate the employe's needs to pick up her child but they could not allow her to violate labor laws to work her ideal schedule. I do not believe that the employe quit with good cause attributable to the employer so I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner

cc: GATES MCDONALD

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