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

LAWRENCE C KOELSCH, Employee

AMERICAN LANDSCAPE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603947MW


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 seasons as a field tractor operator for the employer, a landscape and snow removal business. His last day of work was October 27, 2005. His yearly work season was from May through the end of October or start of November.

On March 6, 2006, the employer sent the employee a letter indicating that over the winter, the employer had implemented some changes. The employee was now required to have a commercial driver's license (CDL) and would be required to report to the employer's shop each day to punch in and out instead of just reporting to the jobsite. The letter informed the employee that he had 30 days to obtain a CDL license and that he should contact the employer within a week if he planned to obtain it. The employee had some minimal contact with the employer about the CDL requirement through which he learned that, to acquire a CDL, he would be required to pass a written test, a road test and a medical exam. The employee would have to bear a portion of these costs initially with later reimbursement from the employer. The employee did not obtain a CDL.

On April 6, 2006 (week 14), the employer mailed the employee another letter indicating that since 30 days had elapsed from the first letter and the employee did not confirm that he obtained a CDL, the employment was terminated.

The first issue for the commission is whether the employment relationship was in a continuing status as of week 14 of 2006 or whether it had been terminated.

In Hemstock Concrete Products v. LIRC, 127 Wis. 2d 437 (Ct. App. 1985), the court determined that the employment relationship continues where a worker has a definite expectation of being recalled at a date that was definitely predictable. Specifically,

There is a presumption that a layoff severs the employment relationship, but both the commission and the court have recognized that the presumption may be rebutted by "evidence that at the time of layoff there existed an assurance, expressed or clearly implied by circumstances, that work and wages would be resumed at an ascertainable time in the not too distant future." Hemstock at p. 442, citing Hermann v. Miller Brewing Company, Hearing No. 18852, Decision No. 54-A-38 (Industrial Commission of Wisconsin, December 18, 1953) quoted with approval in A.O. Smith, 88 Wis. 2d at 267, 276 N.W.2d at 282 (1979).

In this case, when the most recent season ended in October 2005, both the employee and employer understood that the employment relationship was continuing. Specifically, the employee's supervisor testified that while there was no specific date of return set, it was understood that the employment would most likely resume in mid April with the mowing to start the first part of May. Similarly, the employee testified that the work always started around May or the week before to work on equipment. As such, the commission finds that the employment was in a continuing status and it was the employee's failure to obtain a CDL that ended the employment relationship.

Wis. Stat. § 108.04(7) generally provides that a worker who voluntarily terminates his or her employment is ineligible for unemployment benefits until four weeks have elapsed after the week of the quitting and the worker has earned wages in covered employment equaling at least four times his or her weekly benefit rate unless his or her quitting falls within one of the listed exceptions. Yet, Wis. Stat. § 108.04(9)(b) states that benefits shall not be denied to any otherwise eligible individual 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.

Thus, the next issue before the commission is whether the employer's new requirement that the employee obtain an CDL constituted "new work" subject to the provisions of Wis. Stat. § 108.04(9)(b).

The U.S. Department of Labor Unemployment Insurance Program Letter (DOL UIPL) number 984, dated September 20, 1968, defined "new work," at pg 2, in relevant part, as:

an offer by an individual's present employer of (a) different duties from those he has agreed to perform in his existing contract of employment, or (b) different terms or conditions of employment from those in the existing contract.

Further, the "Questions and Answers" section of DOL UIPL 41-98, dated July 19, 2000, provides, in part, as follows:

Q2. How does the definition of new work apply to changes in the employment conditions for an individual by the current employer? Is any change in conditions an offer of new work?

A. States are not required to treat any minor change in a job situation as an offer of new work. For a change in job situation to be considered new work, the change must be material. For example, if an individual is reassigned from one general secretarial position to another general secretarial position, and the only change is a different supervisor, an offer of new work does not exist under the prevailing conditions requirements. On the other hand, if the new assignment is as an accounting clerk, when the previous assignment was as a secretary, the change is material and the prevailing conditions requirements apply. . .

The commission finds that the requirement of a CDL was a material change to the employee's job duties; previously the employee was not required to maintain such a license and did not transport equipment and, with the CDL, he would now have those responsibilities.

Since the CDL requirement was a material change, the next issue is whether the work was suitable for the employee.

UIPL 41-98, dated August 17, 1998, at page 2, provides that a two step analysis is required to determine if the offered work is suitable: (1) is the work suitable to the individual considering his or her previous wage and skill levels, generally a matter of State law, and (2) does the work meet the requirements of Section 3304(a)(5)(B), including the "prevailing conditions of work" requirement.

There is no evidence that the employee ever performed work that required a CDL and he did not have one. Therefore, under the first step of the above analysis, the new work was not suitable to the employee personally. Since the transfer to the new work was not suitable, the employee had good cause to quit rather than accept a transfer to such work.

The commission therefore finds that in week 14 of 2006, the employee was not discharged, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 14 of 2006, 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 is reversed. Accordingly, the employee is eligible for benefits beginning in week 14 of 2006, if otherwise qualified.

Dated and mailed November 2, 2006
koelsla . urr : 150 : 8   SW 844   SW 825.01

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the ALJ prior to reversing the decision. In particular, the reversal is based upon a differing conclusion of law regarding the existence of "new work;" it is not based upon a differing assessment of witness credibility.

 

cc:
Attorney Thomas C. Wilkoski
Attorney S. Bryan Kleinmaier


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uploaded 2006/11/06