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


GARY A DELZER, Employe

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98202023EC


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 employe worked approximately three months mounting tires for the employer, a discount store. The employe's last day of work was October 29, 1998 (week 44) when he terminated his employment.

In addition to his work for the employer, the employe also worked full-time for a paint booth manufacturing business. The employe found working both of the jobs to be too great of a burden. For this reason, the employe terminated his employment with the employer so he could continue solely with his full-time employer. After terminating this part-time employment, the employe learned that he was to be laid off from work for one week, the week ending November 28, 1998 (week 48), by his full-time employer, the paint booth manufacturing business.

The issue is whether the employe voluntarily terminated his part-time work with the named employer for any reason permitting the payment of benefits. Here, the relevant statutory exception to the quit/disqualification is Wis. Stat. § 108.04(7)(o). The section provides:

"Paragraph (a) does not apply to an employe who terminates his or her work in one of two or more concurrently held positions, at least one of which consists of more than 30 hours per week, if the employe terminates his or her work before receiving notice of termination from a position which consists of more than 30 hours per week."

Despite the employe's testimony that he was on a one week layoff rather than being terminated by his full-time employer, the ALJ applied Wis. Stat. § 108.04(7)(o). The ALJ noted that while the employe's one week layoff from his full-time employer was not literally a termination of employment within the meaning of Wis. Stat. § 108.04(7)(o), the ALJ concluded that the statute encompassed the situation before him.

The commission interprets Wis. Stat. § 108.04(7)(o) to require, as a condition of the applicability of that exception, a notice of termination from a full- time employer after the employe has terminated one of two or more concurrently held positions. This did not occur here. A one week layoff does not serve to terminate the employment relationship; therefore Wis. Stat. § 108.04(7)(o) is inapplicable. See also Werner Neuendorf v. Lincoln Lutheran of Racine Wisconsin, Inc., (LIRC 2/17/95) and Donovan R. Harjo v. Panoramic Inc., (LIRC 3/28/97) regarding one week layoffs and the inapplicability of Wis. Stat. § 108.04(7)(o) to part-time quits.

The commission therefore finds that in week 44 of 1998, the employe voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a), but not for a reason constituting an exception to that section.

The final issue is whether the appeal tribunal decision constitutes departmental error within the meaning of Wis. Stat. § 108.02(10e). Departmental error includes misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission. In this case, the ALJ misapplied Wis. Stat. § 108.04(7)(o), by not requiring as a condition of the applicability of that section an actual notice of termination from a full-time employment. The employe instead was placed on a one week layoff and immediately resumed employment with the full-time employer. The employe received unemployment benefits totaling $245.00 for week 48 of 1998 as a result of the appeal tribunal decision. Because the benefits were paid to the employe as a result of departmental error, and through no fault of the employe, recovery of the $245.00 for week 48 of 1998, is waived pursuant to Wis. Stat. § 108.22(8)(c).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 44 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 his weekly benefit rate which would have been paid had the quitting not occurred. Recovery of the $245.00 unemployment benefits for week 48 of 1998 is waived.

Dated and mailed May 6, 1999
delzega.urr : 135 : 1 VL 1020  BR 335.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not confer with the ALJ before determining to reverse the appeal tribunal decision. This reversal is as a matter of law as it does not involve any issue of credibility. The ALJ misapplied Wis. Stat. § 108.04(7)(o) to the facts at hand. The misapplication constituted a departmental error and the overpayment stemming from this appeal tribunal decision is therefore waived.

cc: SAMS CLUB

DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS


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