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


LORI A WINTERS, Employe

FARNAM MEILLOR SEALING SYSTEMS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98002698WR


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 beginning in week 23 of 1998, if otherwise qualified.

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

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The facts in this case are undisputed. The employe quit when she refused to accept a transfer to second shift because of child care issues. The employe currently worked first shift but had in the past worked second shift. The transfer was imposed pursuant to the collective bargaining agreement governing the employe/employer relationship.

Prior to the issuance of the U.S. Department of Labor's (DOL) Unemployment Insurance Program Letter (UIPL) 41-98, the commission would have concluded that the collective bargaining agreement was the employe's contract of hire and that the transfer imposed pursuant to the agreement would not constitute "new work" within the meaning of Wis. Stat. § 108.04(9)(b), labor standards.

However, in view of the issuance of DOL's recent UIPL 41-98, the commission has reconsidered it position on whether a transfer to a different shift pursuant to a collective bargaining agreement, constitutes "new work" within the meaning of Wis. Stat. § 108.04(9)(b).

In 1968, DOL defined "new work" as:

"An offer by an individual's present employer of: a) different duties from those the individual has agreed to perform in the existing contract of employment; or b) different terms or conditions of employment from those in the existing contract." UIPL 984 at pg 3.

UIPL 984 further provided that "an attempted change in the duties, terms or conditions of the work, not authorized by the existing employment contract, is in effect the termination of the existing contract and the offer of a new contract." UIPL 984 at pg. 4. Consequently, the department and the commission have consistently held that transfers to a different shift as a result of bumping rights or seniority clauses governed by collective bargaining agreements were not offers of new work, and labor standards found in Wis. Stat. § 108.04(9)(b) were inapplicable.

Although the recent UIPL 41-98 reiterated the department's definition of new work as it was defined in UIPL 984, DOL notes that it is supplementing UIPL 984 with the following:

"No contract granting the employer the right to change working conditions may act as a bar to determining that `new work' exists." UIPL 41-98 pg. 5.

The commission believes that the plain language of this supplemental note means that collective bargaining agreements such as this one may not bar the factfinder from treating such transfers as new work under the labor standards. Although an argument could be made that UIPL 41-98 speaks only to temporary help employment relationships, the commission is unwilling to narrowly interpret this supplemental note in view of the UIPL's plain language. As such, the commission concludes that all employment relationships, even those governed by collective bargaining agreements, are subject to this interpretation of the recent UIPL 41-98.

Having discussed the above, the commission must now address the facts of this case. Pursuant to Wis. Stat. § 108.04(9)(b), 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, benefits may not be denied to an individual who refuses to accept "new work" under such conditions. The fact that the employe once worked second shift for the employer does not negate the applicability of labor standards under these circumstances.

The commission must first determine whether the transfer to second shift was new work even though it was imposed by the collective bargaining agreement. Since the contract may not act as a bar to determining whether the transfer is new work, the commission examines the transfer to second shift itself and concludes it constitutes a different condition of employment and as such is new work. Concluding that the transfer is new work, the next inquiry is whether the transfer to second shift is prevailing. The labor market report admitted into evidence indicates that the second shift offer of full time work constituted 19.27 percent of the shift distribution for similar jobs in the employe's labor market. Because this percentage falls in the lower quartile of all suitable hours for the employe, the hours/shift are considered substantially less favorable to the employe than other prevailing work schedules and shifts comprised in the employe's overall labor market. Accordingly, unemployment benefits cannot be denied to the employe for her refusal to accept this transfer since it is in a non-prevailing labor condition.

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

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent.

I would not apply the UIPL 41-98 beyond temporary help employment relationships. Section 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.

Here the employe is under a bargained for union contract. I would not find that the union would bargain for substandard work. The employe knew at the time of hire that it was possible she might be bumped pursuant to the collective bargaining agreement. The majority of her time for the employer was spent on 2nd shift. When economic conditions improved and people were recalled from layoff, the employe could be returned to first shift. I do not find that the quit was good cause attributable to the employer.

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 worked 2nd shift for 3 and 1/2 years for this employer. I do not believe that this is new work. Therefore, I would reverse and find that the employe quit not within any exception which would allow for the immediate payment of benefits. The employe must requalify for benefits.

Pamela I. Anderson, Commissioner


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