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

DAVID E WRIGHT, Employee

BOB TOLKAN BUICK GMC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603508MW


On May 13, 2006, the Department of Workforce Development issued an initial determination which held that the employee quit his employment, but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on June 20, 2006 in Milwaukee, Wisconsin before a department administrative law judge. On June 22, 2006, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately nine years as a painter for the employer, an automobile dealership. His employment ended when he refused to agree to work on a certain category of vehicles for $4.40 per hour less than his usual hourly rate of pay for the employer's regular work ($15.65). The administrative law judge found that the separation was a quit by the employee because the employee could have remained employed had he agreed to continue working at the reduced rate of pay, and the commission agrees. The commission believes the administrative law judge erred, however, in concluding that the employee's quit was with good cause attributable to the employer.

In April of 2006, the employer's workload was so low that it was at the point where it was going to have to lay off employees because of the lack of bodywork. For this reason, the employer sought out and obtained a rental car concern as a client but, in order to do so, agreed to charge the client a reduced rate for bodywork for that client ($25 per hour versus its normal $48 per hour rate). For this reason, the employer was only going to pay its bodywork employees $11.25 per hour for the work for the rental car concern. The employee objected to performing work at the lower rate, so the employer initially assigned all such work to co-workers and only regular dealership work to the employee. The employer eventually concluded that this plan was unworkable and so ordered the employee to begin performing his share of rental car work at the reduced rate. The employee refused, at which point the employment relationship ended.

A voluntary quit of employment under Wis. Stat. § 108.04(7)(a) includes conduct inconsistent with the continuation of the employment. The commission agrees with the appeal tribunal that the employee's refusal to perform any work for the rental car concern meets this standard. Had he performed his assigned share of that work, his employment would have remained intact. The commission cannot agree with the administrative law judge that the employee's quit was with good cause attributable to the employer, however, or for any other reason constituting an exception to the general quit disqualification of Wis. Stat. § 108.04(7)(a). Although the commission, the appeal tribunal, and the parties have couched the employee's remuneration in terms of a certain number of dollars per hour, that characterization is a misnomer. The employee actually was remunerated on a flat rate off estimates for work he was to perform. For example, if the estimate was that it would take three hours to do a certain piece of bodywork, the employee would receive $46.95 for that work, whether it took him two hours, three hours, or four hours to do it. In other words, the employee was paid on a kind of "piece rate" basis and, when there was no work, the employee and his co-workers received nothing. It was the lack of work, and the likelihood of layoffs of employees, that prompted the employer to obtain the contract with the rental car concern. It is uncontested that the rental car work was only going to be fill-in work for times when there was no regular dealership work. It was supplemental work for when things were slow and it was not the employer's intention to do away with its regular work. The employee declined to do the rental car work because he feared that, if he performed that work at a reduced rate, the employer subsequently would reduce his remuneration for the employer's regular bodywork as well. There is no basis anywhere in the record for this fear on the employee's part, however, and there is no evidence that the rental car work was anything other than what the employer said it was: fill-in work for times when there was no regular bodywork. For these reasons, the commission cannot conclude that the employee's refusal to do that work was justified.

The commission therefore finds that, in week 17 of 2006, the employee terminated work with the employer within the meaning of Wis. Stat. § 108.04(7)(a), but not with good cause attributable to the employer or for any other reason constituting an exception to that section. The commission also finds that the employee was paid benefits in the amount of $341 per week for each of weeks 17 through 32 of 2006, totaling $5,456.00, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). The commission finds, finally, that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment was the result of departmental error and did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f). Specifically, the administrative law judge, in concluding that the employee had good cause for refusing the rental car concern bodywork, failed to take into account the actual remuneration structure the employee and his co-workers were operating under. [The rental car concern work is not properly compared to the employer's regular dealership bodywork, but rather to periods of time when the employee and his co-workers were performing no work and thus receiving no pay at all.] The commission believes this constituted a mistake of evidentiary fact by the administrative law judge, which falls within the definition of departmental error in Wis. Stat. § 108.02(10e).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2006, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the $5,456.00 to the Unemployment Reserve Fund.

Dated and mailed August 18, 2006
wrighda : 105 : 4   VL 1059.20  BR 335.02

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility impression from that obtained by the administrative law judge. Rather, the commission believes as a matter of law that the employee did not have good cause for the quit of employment.

 


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uploaded 2006/08/23