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


CHARLOTTE R RANDOLPH, Employe

ARAMARK EDUCATIONAL RESOURCES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602060MW


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 initially issued a decision in this matter on October 23, 1998. After reconsideration on its own motion under Wis. Stat. § 108.09(6)(b), the commission sets aside its October 23, 1998 decision and substitutes this decision therefore.

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 7 of 1998, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed: November 2, 1998
randoch.upr : 101 : 1 AA 210  VL 1034

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The appeal tribunal found that the employe quit her job with the employer (Aramark Educational Resources) in week 7 of 1998, but not for a reason permitting the immediate payment of benefits under Wis. Stat. § 108.04(7). The employe appeals.

1. The December 2, 1997 (week 49) "quit."

The employe first argues that, when she allegedly quit her job on December 2, 1997 (week 49), she quit within ten weeks of refusing work which she could have refused when offered, and so would qualify for benefits under Wis. Stat. § 108.04(7)(e). However, the commission sees several problems with this assertion.

First, of course, the issue in this case is the employe's separation from employment in week 7 of 1998, not a quit on or about December 2, 1997 (week 49). Thus, even if the employe were found immediately eligible for benefits based on a quit in week 49 of 1997, it would not directly affect the outcome in this case. (1)

Second, while the employe asserts that "there is no dispute that the employment relationship ended with Aramark on December 2, 1997 [week 49]" and that the employe quit on that date, the commission does not agree. Aramark's director, whom the ALJ regarded as credible, testified that she called the employe on December 2, that the employe told her she was ill from stress and suggested the director hire a replacement worker if necessary, but that the employe agreed in that same conversation to return to work on December 9 (week 50). The employe, after calling the employer on December 9 to postpone her return to work, in fact returned on December 15 (week 51). The commission declines to characterize this sequence of events as a quit and rehire. Given the conversation between the employe and Aramark's director, the employe never actually quit in week 49 of 1997 and rescinded any implicit indication that she meant to quit before it was accepted or relied upon by the employer.

Third, even assuming the employe actually quit in week 49 of 1997, Wis. Stat. § 108.04(7)(e) (1996-97) required a worker to quit his or her job with the "same good cause" as he or she had to refuse it in the first place. In this case, the "same good cause," according to the employe's attorney, was the employe's relatively low rate of pay which would have entitled her to refuse the job when offered under Wis. Stat. 108.04(8)(a) by operation of the "canvassing period" under Wis. Stat. § 108.04(8)(d) following her separation from the Milwaukee Healthy Women and Infants Project. However, the employe did not quit because of low pay in week 49 of 1997, rather she stopped working because she was "ill from stress."

The commission observes that 1997 Wis. Act 39, SECTION 64 recently amended Wis. Stat. § 108.04(7)(e) to provide that an employe who quits work which he or she could have failed to accept under Wis. Stat. § 108.04(8)(d) remains eligible regardless of the reason the employe articulates for the quit. However, since this modification to Wis. Stat. § 108.04(7)(e) was on January 4, 1998, it does not apply to the alleged quit in week 49 of 1997.

Finally, as the employe recognizes, the commission has previously held:

"When applying [Wis. Stat. § 108.04 (8)] through operation of [Wis. Stat. § 108.04(7)(e)], it is not sufficient for the employe to quit within 10 weeks of beginning work, the quitting must also be within 6 weeks of becoming unemployed."

Mary B. Arnett v. University of Tulsa, UC hearing no. 97000239MD (LIRC, October 1, 1997), slip op., at page 10.

In this case, the employe's alleged quit from Aramark on December 2, 1997 (week 49) was more than six weeks after she stopped working for Milwaukee Healthy Women & Infants Project on September 20, 1997 (week 38). Under Arnett, then, the employe cannot prevail. However, the employe contends the commission erred in Arnett. She argues that her canvassing period after leaving Milwaukee Healthy Women & Infants Project should in effect have tolled with the acceptance of her job at Aramark on October 23, 1997 (week 43), so that she might still raise the six-week canvassing period in a "quit same good cause" analysis upon her alleged separation from Aramark on December 2, 1997 (week 49).

However, the commission does not agree. As the commission explained in Arnett, it regards its interpretation of the interplay between Wis. Stat. § 108.04(7)(e) and (8) to be consistent with prior commission decisions, including at least one upheld on judicial review. Moreover, Arnett was recently affirmed sub nom. Mary Beth Arnett v. LIRC and University of Tulsa, (Dane County Circuit Court Case No. 97-CV-2939, July 30, 1998). The commission does note, however, that the recent changes to Wis. Stat. § 108.04(7)(e) by 1997 Wis. Act 39 may require a different result with respect to voluntary terminations occuring after the act's January 4, 1998 effective date.

2. The February 13, 1998 (week 7) quit.

The commission now turns to the February 13, 1998 (week 7) separation at issue in this case. The employe again asserts that when she quit the employer on February 13, 1998 (week 7), she did so within ten weeks of her "rehire" on December 15, 1997 (week 51) to a job which she had good cause to refuse. The employe again raises the canvassing period, this time running from her alleged separation from Aramark in week 49 of 1997, contending that when she was "rehired" at Aramark in week 51 of 1997 she had not yet had the opportunity to seek a job substantially in line with her prior skills and pay based on her job experience at Aramark and Milwaukee Healthy Women and Infants Project. The employe contends that she is therefore eligible for the immediate payment of benefits under Wis. Stat. § 108.04(7)(e) and (8) with respect to the week 7 of 1998 quit as well.

The employe quit her job on February 13 (week 7 of 1998) because she was making too little money to pay day care expenses for her child. With respect to this quit, then, her reason for quitting would be the "same good cause" as she would have had to refuse the "rehire" at Aramark, if she had been able to use the canvassing period to refuse the offer of rehire at Aramark in week 51 of 1997. Further, the recent amendment to Wis. Stat. § 108.04(7)(e) by 1997 Wis. Act 39 was in effect by the time of the voluntary termination in week 7 of 1998. But this does not end the inquiry.

First, of course, because the commission concludes the employe did not actually quit her job with Aramark on December 2, 1997 (week 49), the employe's quit on February 13, 1998 (week 7) was well over ten weeks after starting the job with Aramark on October 23, 1997 (week 43). Second, even if the commission were to consider the employe to have quit on December 2, 1997, the commission is not persuaded that the employe's employment history as of December 15, 1997 gave the employe good cause to refuse the "rehire" at Aramark at that point. By December 15, 1997, the employe had had a reasonable opportunity, in view of the labor market and the employe's degree of skill, to seek a new job substantially in line with her prior job skill and rate of pay even considering the employment with Milwaukee Healthy Women & Infants Project which ended in September, 1997.

Therefore, based on the reasons discussed above, the commission affirms the appeal tribunal decision.

NOTE: The commission re-issued its decision in this case to address the recent changes to Wis. Stat. § 108.04(7)(e) by 1998 Wis. Act 39.

 

cc: ARAMARK EDUCATION RESOURCES INC

ATTORNEY JEFFERY R MYER
ATTORNEY KARYN L ROTKER


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Footnotes:

(1)( Back ) If the employe were found ineligible based on a separation from employment in week 49 of 1997, she apparently would have requalified for benefits under Wis. Stat. § 108.04(7)(a) by the time she separated again in February 1998. Nonetheless, the commission discusses the remainder of the employe's arguments with respect to the alleged separation in week 49 of 1997 to provide a framework for analysis of the separation at issue in week 7 of 1998.