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


ROBERT A ZOCHER, Employe

MARATHON ELECTRIC MFG CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98002507WU


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 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 eligible for benefits as of week 20 of 1998, if otherwise qualified.

Dated and mailed: December 9, 1998
zochero.usd : 135 : 1 SW 844

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The facts in this case are undisputed. A few days prior to the employe's last day of work the employe's position was eliminated due to lack of work. The employe was then offered four other positions on second or third shift. The employe refused all of the offers primarily due to arrangement of hours. The employer contends that the employe should be ineligible for unemployment benefits because there was work available and offered the employe. The employe also indicated on his employment application that he was available for first, second or third shift.

In its petition for commission review, the employer contends that the definition of "new work" as found in Wis. Stat. § 108.04(9)(b) is "being stretched beyond the intent of the statute." The employer then cites Wis. Stat. § 108.02(12)(a) for the proposition that the statute allows an employe to perform various duties for the employer under the terms of employment. This statute defines employe, it does not answer the question of whether the positions offered were new work. (1)

The four positions are considered offers of new work in this case because the employe's job had been eliminated due to lack of work. Because of this separation, the offers were offers of new work. Consequently, labor standards found in Wis. Stat. § 108.04(9)(b) apply.

The employer raises concern with the prevailing nature of wages offered and indicates that pursuant to Wis. Stat. § 108.04(7)(f), the offers do not reflect a one-third pay reduction. The commission however need not address the issue of wages since the reason the employe refused the offers of new work was due to the arrangement of hours/shifts. The labor market evidence indicates that the shifts were non-prevailing for similar work in the employe's labor market. Consequently, the employe cannot be denied benefits since the hours of employment, second or third shift, are substantially less favorable to the employe than those prevailing for similar work, pursuant to Wis. Stat. § 108.04(9)(b).

Although the employer raises great concern with the fact that the employe was hired and trained by the employer for a three shift operation, the commission is statutorily required to apply the relevant law, including labor standards. Labor standards are an objective standard imposed by Congress to ensure uniformity in the application of its Federal Unemployment Tax Act (FUTA). Wisconsin's conformity with the statutory provision found in Wis. Stat. § 108.04(9)(b) is necessary in order to ensure that Wisconsin employers remain eligible for any available tax credit awarded under FUTA. While it may seem unfair to the employer that the employe is eligible for benefits even though these were shifts he had agreed to work and in fact had worked, the law requires this result. Thus, even though a worker in the past has worked non-prevailing shifts, should he refuse an offer of work on a non- prevailing shift, the worker may still be eligible for benefits. The converse would apply to a worker who desires to work second or third shift, quits and then is offered a prevailing first shift. This worker is ineligible because prevailing hours are available. Because of the objective nature of labor standards, results of eligibility may differ depending on the labor conditions offered. This case is no exception. The shifts offered were non-prevailing under Wis. Stat. § 108.04(9)(b) and the employe is eligible for benefits.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I disagree with the way the majority is applying 108.04(9)(b) which provides "Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing new work under any of the following conditions: (b) If the wages, hours (including arrangement and number) or other conditions of the work are substantially less favorable to the individual than those prevailing for similar work in the locality." Section (a) deals with a position that is vacant due to a strike or lockout and (c) deals requiring the employe to join a company union or resign from or refrain from joining a labor organization.

The majority is saying because less than 25% of the jobs for similar work are on second or third shift, the work is substandard work. The employe had been working 3rd shift and did not object to working third shift. He did object to working 2nd shift because of his family. I believe that the work on 3rd shift was not substantially less favorable to the employe.

I would reverse and find that the employe was ineligible for benefits because he quit not within any exception and he must requalify for benefits.

Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The commission recently discussed its interpretation of new work vis-a-via union contracts in Lori A. Winters v. Farnam Meillor Sealing , UI Hearing No. 98002698. A more detailed discussion of this legal analysis can be found in that decision.