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

FELECIA A HUBBARD, Employee

QUADRA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600059RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (department) 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 has worked as an injection molder for the employer, a company involved with liquid silicone injection molding. The employee continues to work for the employer.

The employee had been working on second shift for the employer. Her typical hours were 10:30 p.m. to 7:00 a.m.

On August 27, 2006, the employee began working on third shift as a result of starting a 14-week CNC training program at Gateway Technical College, which was paid for by the department. The schooling was done during first shift hours, 8:00 a.m. to 5:00 p.m. The employer was aware of the employee's schooling and approved her transfer to third shift.

In November of 2006, the employer decided to eliminate all third-shift positions. The employee was given the choice of returning to first shift or second shift. The employee reminded the employer that she was still attending school from 8:00 a.m. to 5:00 p.m., which eliminated the possibility of working first shift and cut into the second shift hours which started at 3:30 p.m. The employer agreed to allow the employee to work reduced hours on second shift.

On November 6, 2006, the employee started working her part-time schedule. She typically started work at 6:00 p.m. or 6:30 p.m. and worked until 12:00 midnight. The employee averaged about 5.5 hours per shift, which was less than the eight hours she had previously been working for the employer.

On December 15, 2006 (week 50), the employee's schooling ended. The employee was not returned to full-time status because of warnings in her employee record. As of December 18, 2006, the employee's hours were adjusted so that she was working seven hours per shift, an increase form the 5.5 hours she had been working.

On January 22, 2007, the president of the company limited the number of hours that part-time workers were entitled to work to a maximum of six hours per shift.

The initial issue to be decided is whether the employee voluntarily terminated her employment in week 45 of 2006.

Wis. Stat. § 108.04(7m), deems it a quit if an employer "grants the employee's voluntarily request to reduce indefinitely the number of hours of employment usually worked by the employee." In this case, the employee did not make a voluntary request to reduce indefinitely the number of hours of employment she usually worked. The employer may have determined after the fact that it could not return the employee to full-time status, but the employee's request was only to be allowed to complete her training program. Neither the employee nor the employer testified that at the time the employee was to return to second shift, and the employer agreed to allow her to work part time, there was any discussion about what her hours would be after her schooling was completed.

The employee's failure to work all hours available would bring up a work available issue pursuant to Wis. Stat. § 108.04(1)(a), however, under Wis. Stat. § 108.04(16)(a), the department cannot reduce benefits because an employee is not available for work if the employee is in approved training.

The next issue to be decided is whether the employee was in approved training beginning in week 45 of 2006.

In order to constitute approved training, the training must increase the employee's opportunity to obtain employment, the training institution must be approved by the department or be a school established under s. 38.02, the employee must be enrolled full-time, the course must not grant substantial credit leading to a Bachelor's or higher degree, and the employee must be regularly attending and making satisfactory progress in the course.

The description of the training program itself, and the employee's testimony, establish and permit the reasonable inference that the training satisfies the requirements of approved training. Gateway Technical College is an institution approved by the department. As long as the employee is taking all credits available for a course, the employee is considered to be enrolled full time. The employee was attending a specific training program and there is no indication that the employee was taking less than full-time credits available for that training program. The commission believes a reasonable inference is that a 14-week CNC course does not grant substantial credit toward a Bachelor's degree. Finally, as the employee finished the program, she must have been making satisfactory progress.

The commission therefore finds that in week 45 of 2006, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7m).

The commission further finds that in weeks 45 through 50 of 2006, the employee was in approved training within the meaning of Wis. Stat. § 108.04(16)(a).

As of the completion of her training in week 50 of 2006, the employee was working reduced hours but not due to her voluntary request to do so. She was therefore performing all the work that was offered to her.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 45 of 2006, if she is otherwise qualified.

Dated and mailed April 23, 2007
hubbafe . urr : 132 : 1 :  VL 1039.09 AA 205

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Note: The commission did not discuss witness demeanor with the ALJ. The commission's reversal is not based on credibility. The commission has reached a different legal conclusion than reached by the ALJ.


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