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

JEFFREY D PEASLEE, Employee

MHF, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12600412WB


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked 21 years as a machine operator for the employer, a metal fabrication business. His last day of work was October 26, 2011 (week 44), when he quit.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

Through June, 2011, the employee lived 1.5 miles from the job site, and had a ten minute commute to work. He worked from 6:00 a.m. until 2:15 p.m. daily.

In May, 2011, the employer decided to close the facility at which the employee worked and transfer all work to its Chicago facility. The employee worked at the Milwaukee facility through June 14, 2011. He began working in the Chicago facility on June 15, 2011.

The transfer required that the employee leave his home at 6:00 a.m. to catch a train and then a taxi to the employer's Chicago facility. He arrived at work at approximately 8:30 a.m. and worked until 2:15 p.m. He would then reverse his trip, arriving home at approximately 4:30 p.m. He worked 30 hours per week for the employer, but was paid for 40 hours of work to offset a portion of his commuting time. The employer also paid for all but approximately $10 of the employee's daily commuting costs. He received a raise of approximately $1.50 per hour when he began working in Chicago.

The employee's mother was diagnosed with cancer two years ago. Although the employee does not need to provide cares for his mother, he does like to check on her during the week and take care of things for her. He found this to be difficult with his long commute to Chicago. He was also beginning to experience back pain, although he did not seek medical attention for this situation prior to quitting his job with the employer.

On August 26, 2011 (week 35), the employee gave notice that he would quit his job, as the commute was taking its toll on him. The owner asked the employee to work through October 26, 2011 (week 44), and the employee agreed to do so.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer can be determined if such quitting was a reasonable reaction to some act on the part of the employer. Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). In other words, the "good cause" relates to the reaction of the employee, and not whether the employer had good cause for the action it took which precipitated the employee's decision to quit. Petersen v. Paper Transport, Inc. (LIRC, March 26, 2009).

The employee asserts that he quit his job with good cause attributable to the employer. In establishing benefit entitlement under the good cause exception to the general rule, the burden is on the employee to establish that the employer's actions were substantial enough to justify becoming unemployed. The employee must also establish that he pursued alternatives short of quitting.

The employer closed its Milwaukee operations and transferred the work to its Chicago facility because that made the most economic sense for the employer. The employer was very good to the employee and increased his wage, paid for ten hours per week of travel time, and subsidized his commuting expenses. The employer's decision to move was the result of a reasonable business decision. The employer attempted to share the expense of the move with the employee. However, the fact remains that the employer's move resulted in a very long commute for the employee. His commute was about five hours each day. Even with his shortened work day, the distance he was required to travel added over two hours to his commute. In addition, the long commute caused the employee to lose the flexibility to help his mother by taking her to doctor's appointments, and performing housekeeping and other tasks. The employee did look at alternatives to quitting as he investigated what it would cost to relocate. The employee was unable to afford to live in Chicago.

The employee did wait a significant amount of time before quitting. However, he told the employer about ten weeks after transferring to Chicago that the commute was taking too much of a toll on him. The employer testified that it told the employee, when he mentioned wishing to quit, that there was a co-worker who was concerned about losing his travel partner and the employee said he would reconsider the situation for a period of time and see how it goes. Therefore, the employer indicated that, when the employee indicated he was quitting, it essentially asked the employee to try to continue commuting for awhile. The employee accepted the transfer to the Chicago location with the specific intention of trying out the commute. The delay in the employee's actual last day of work was in part the result of the employer's request that he attempt to commute for as long as he could. The significant commute in this case provided the employee with good cause attributable to the employer for quitting.

The commission therefore finds that in week 44 of 2011, the employee quit his job with good cause attributable to the employer, within the meaning of Wis. Stat.
§ 108.04(7)(b), and accordingly, is eligible for benefits, if otherwise qualified.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed April 5, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The facts in this case were not disputed. The commission reverses the ALJ's decision because it disagrees with her conclusion that the employee did not quit his job with good cause attributable to the employer.

peaslje . urr : 145 : 5


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