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

TINA M SCHULENBERG, Employe

YELLOW RIVER INN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003804MD

On September 5, 1998, the Department of Workforce Development issued an initial determination which held that the employe's quit was not for a reason allowing for immediate eligibility for unemployment insurance. The employe filed a timely request for hearing on the adverse determination, and hearing was held on October 12, 1998 in Madison, Wisconsin before a department administrative law judge. On October 14, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision and, by December 10, 1998 Order, the commission remanded the matter for additional hearing, which was held on January 27, 1999. The case is again before the commission, and is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for six weeks as an assistant manager/bartender earning $6.00 per hour for the employer, a restaurant and bar. Her last day of work was August 12, 1998 (week 33), when she voluntarily terminated her employment to relocate to another area of the state. The issue is whether the employe's quit was for a reason allowing for immediate eligibility for unemployment insurance. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employe worked second shift for the employer, 20 to 24 hours per week. During her employment with the employer, she, her children and her fiancé‚ were living in a tent behind the home of her fiancé's mother. When her fiancé obtained a job in Prairie Du Sac, she and her children accompanied him there.

Wisconsin statute § 108.04(7)(e) renders an employe eligible for unemployment insurance if the employe accepted work which the employe could have refused under § 108.04(9) and terminated such work within the first ten weeks after starting the work. Subsection (9) is the so-called labor standards provision, and subsection (b) states that benefits shall not be denied 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." In other words, if an employe could have refused a job in the first instance because the wages, hours, or other conditions are "non-prevailing" (a shorthand expression for conditions substantially less favorable than those prevailing), then the employe can quit such work within the first ten weeks after starting it. If the condition in question is found in less than 25 percent of the similar work in the labor market, then the condition is "non-prevailing." In this case, the employe worked 20 to 24 hours per week. According to the labor market report, as well as to testimony from the labor market analyst, only 20 percent of similar work in the employe's labor market area is part-time work of 24 hours per week or less. Only 10 percent of similar work in the labor market area is work of 20 hours per week or less. "The prevailing conditions of work standard applies to all denials of benefits for refusal of offers of or referral to new work, regardless of whether the claimant raises the issue and regardless of his reasons for refusing the job or the referral." Memorandum No. 324 to District Examiners (Industrial Commission of Wisconsin, August 2, 1950). This language, from the commission's predecessor, tracks federal language in what continues to be the federal government's most definitive pronouncement on labor standards, its January 6, 1947 Program Letter (No. 130). There, the Department of Labor states that the standards in question are minimum standards, that they apply to all denials of benefits for refusal of offers of or referrals to new work regardless of the reasons for refusing the job in question. By operation of Wis. Stat. § 108.04(7)(e), this standard also applies to quits within ten weeks of starting the employment in question.

The commission therefore finds that the employe accepted work in week 28 of 1998, that could have been refused because the wages, hours (including arrangement and number), or other conditions of the work were substantially less favorable to the employe than those prevailing for similar work in the locality, and that the employe voluntarily terminated that work in week 33 of 1998, within ten weeks after starting work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance beginning in week 33 of 1998, if she is otherwise qualified. NOTE: If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employe based upon work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed: March 23, 1999
schulti.urr : 105 : 1 SW 844 VL 1034

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission does not disagree with any factual findings of the administrative law judge; rather, the labor market report pursuant to which the administrative law judge found Wis. Stat. § 108.04(7)(e) inapplicable, incorrectly listed the employe's weekly hours as 40. In fact, there is no dispute as to the employe's actual weekly hours: 20 to 24.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge's decision and would accept it as my own.

Pamela I. Anderson, Commissioner

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