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


JOHN C THOMPSON, Employe

ASPLUNDH TREE EXPERT CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98600066WK


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, except that it makes the following modifications:

The last three sentences of paragraph three of the appeal tribunal's Findings of Fact and Conclusions of Law are deleted, and the following is substituted therefor:

"Workers customarily travel approximately 15 miles for similar occupations in the labor market. The pay range for the job in question in the local labor market is from $9.50 per hour to $15.50 per hour. The lowest quartile of that wage range is comprised of those positions paid at a rate equal to or less than $11.30 per hour."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed: October 7, 1998
thompjo.usd : 105 : 6 SW 844  PC 714

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer asserts in the petition for review that work was available for the employe and that the employe knew the work would require some travel. The question, though, is how much travel. The labor market information was to the effect that individuals would customarily travel approximately 15 miles (one way) to perform the groundsman work at issue in the case. The offer of work the employe refused, though, required that the employe travel approximately 25 miles one way. This represents an approximately 67 percent increase above the customary travel distance. The dissent disagrees with this evidence, but goes outside the hearing record to do so. In addition, the labor market analyst at the remand hearing testified that a "substantially less favorable" wage for the work in question was $11.30 per hour. The employer's offer to the employe was $10.45 per hour, a significant amount under even the lowest figure for "prevailing" wages for that type of work in that labor market area. When these factors are taken together, they justify the employe's refusal of the offer of work in question.

The dissent argues that the COED system is insufficient in these kinds of cases and uses examples from the COED system itself to illustrate the points she is making. The majority shares the dissent's concerns in certain of these areas. The majority recognizes, though, that as an administrative agency it has only those powers granted it by the legislature. The Wisconsin Administrative Code, at section LIRC 1.04, specifically states the manner and scope of the commission's review of the cases appealed to it: "Review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing, as prepared by the department of workforce development, by the commission, or by an outside contractor, from a tape-recording of the hearing or from notes taken at the hearing by the administrative law judge." The commission's reviewing powers simply do not include the appropriation of evidence outside the hearing record for inclusion into the commission's written decisions. Information from outside the record, though, is the basis for the dissent's conclusion that the employe should have had to accept the job offer in question.

 

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 majority that 15 miles (one way) is the customary travel time for Groundsman work. That figure is actually the average distance (mean) for people who were making $10.45 per hour. The type of work the employe was offered requires the employe to report to different work sites as work is available. Just as most carpenters who are involved in construction will change work sites so will people in the job that the employe was offered.

An employe may refuse a job and still receive benefits under section 108.04(9)"Protection of Labor Standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: ... (b) If the wages, hours (including arrangement and number) or other conditions of work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;..."

This provision is a conformity requirement which initially appeared in the Social Security Act in 1935. The federal government published Unemployment Insurance Program Letter #130 (dated 1/6/1947) which on page 3 explained the purpose of the section as "(T)he second, which prevents denial of benefits if wages, hours, or other conditions are substantially less favorable to the individual than those prevailing for similar work in the locality, was designed to prevent the unemployment compensation system from exerting downward pressure on existing labor standards. It was not intended to increase wages or improve the conditions under which workers are employed, but to prevent any compulsion upon workers, through denial of benefits, to accept work under less favorable conditions than those generally to be obtained in the locality for such work." The U.S. Department of Labor has issued another program letter UIPL No. 41-98 on August 17, 1998 which reaffirms that the 1947 letter is good law and should be applied.

The 1947 UIPL described "Similar work", on page 4, in the following way: "Similarity of work can best be judged on the basis customarily used by employers and employes as a result of industrial experience: by occupation and grade of skill. As used in prior legislation, "similar work" has in fact been held to mean work in the same trade or occupation. Superficially this would seem to mean that a job is to be compared with others known by the same title.

However, job titles are sometimes misleading. Different occupations and grade designations are often used in different establishments for the same work. Conversely, the same titles are sometimes used for different kinds of work. The actual comparison of jobs must therefore be made on the basis of the similarity of the work done without regard to title: that is, the similarity of the operations performed, the skill, ability, knowledge required, and the responsibilities involved.

In some occupations the similarity of work cuts across industry lines and the differences in the manner in which the work is done are relatively minor. Bookkeepers and boiler operators, for example are likely to do much the same kind of work whether employed by a grain elevator company, a manufacturing concern or a retail clothing establishment...This essential similarity of work which cuts across industrial lines is generally true of most office, janitorial and clerical occupations and to some degree of unskilled common labor.

In most occupations, on the other hand, there is likely to be considerable variation in the work done in different industries, in parts of industries or even in particular types of establishments within industries. There are marked differences, for example, in the work of a glazier in the construction industry and one in automobile or the furniture industry; and within the furniture industry between a glazier on wooden furniture and one who works on metal furniture. Similar differences exist in the nature of work done by a waiter in a "greasy spoon" and one in a hotel dining room and between the work of a dress saleswoman in the bargain basement and a sales person in a dress salon. Thus, even where there is essential similarity, differences in the nature of the tools used, in the size and quality of the materials worked on, or in the clientele to be served, may create characteristic differences in the work which are important to both employers and employes. Such differences are generally to be found in mass-production-process and service occupations."

At the time UIPL#130 was written, a number of jobs were not covered by minimum wage laws. Page 15 dealt with "Substandard Employment - There are some situations which the prevailing standard provisions are not applicable though the work is unsuitable because the conditions of employment are substandard. Thus, though the conditions prevailing for similar work in the locality will ordinarily be better than the minimum standards set by State and Federal law, investigation may occasionally reveal that the wages, hours and conditions prevailing in a particular occupation and locality are below the applicable legal minimum. In such cases where the conditions are in violation of law, even though they are not substantially less favorable than those prevailing, the claimant has good cause for refusing the job under the general suitable work provisions in the State acts."

With this background in mind, what does the ruling in this case do? It broadly defines similar work to ground person to include plumbers, pipefitters, and steamfitters; automotive body and related repairers, brickmasons; all other machinery maintenance mechanics; welders and cutters. At the first hearing, the labor market information classified the employe as a tree trimmer and defined similar work as logging tractor operators; fallers and buckers; log-handling equipment operators; all other timber cutting and related logging workers.

These jobs have different skill levels. The fact is that while the job may be called a groundsman by the employer that is not the same category that COED uses for the type of work the employe would have done. The work the employe would have done involved trimming trees from the ground and spraying to kill weeds. The category of "tree trimmer" in COED is also a higher level of skill than the employe would have done because it involves all other timber cutting related to logging workers.

The effect of using the broader category is to say we will look at what kind of a wage the employe could make if they explored all the lower level positions. In the past we have always looked at what the job paid not what a person might be worth.

While I realize that the department is in a position that it can not provide labor market testimony at each hearing where that testimony is necessary, I believe that the way COED now groups work under "similar work" is not a reasonable way to go. It could be salvaged if it allowed for separate categories especially for work that is widely available like class c assembly. I do appreciate that setting up the COED system was a major effort but I do believe that the criticism is necessary for appropriate standards for the unemployment program.

In this case I do believe that the wage offered the employe was a reasonable wage for the work and it would not lower wages if the employe was required to accept the job. For these reasons, I would reverse and deny benefits in this case because the work was not substantially less favorable to the employe for similar work in his locality.

Pamela I. Anderson, Commissioner

cc: GATES MC DONALD


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