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


KEITH M SCHOWALTER, Employe

COUNTRYSIDE ENTERTAINMENT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600901WB


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 for over two years in several capacities for the employer, a skating rink and banquet hall business. His last day of work was January 17, 1999 (week 4), when he voluntarily terminated his work with the employer.

The issue which must be decided is whether the employe's quitting was for any reason that would allow the immediate payment of benefits.

The employe was hired as an assistant manager, at $6.00 per hour. In November of 1997, he became the general manager at a salary of $20,000 per year. In 1999, his management duties were split between himself and two of his co-workers. This resulted in a change of his duties. His pay was being changed from a salary of $20,000 to $7.25 per hour. The employe initially agreed to work for $7.25 per hour, but attempted to negotiate a bonus or commission arrangement.

In this case, the employer unilaterally changed the employe's duties and pay. The employe's wage would have dropped from $384 per week to about $290 per week, unless he worked overtime.

Wis. Stat. § 108.04(7)(b) allows an employe to remain eligible for unemployment benefits following a quit, if the quit was with good cause attributable to the employer. The employer need not have committed an illegal or egregious act; the law requires that the employer have provided the impetus for the quit, and that this impetus gave the employe good cause to terminate the employment relationship.

In this case, the employer's actions fit within this standard. The employer demoted the employe, resulting in his being required to share his duties with his co-workers. The employe's method of pay went from being a salary to an hourly wage which resulted in decreased compensation for the employe. If the employe is assigned work that involves a decrease in rate of pay and the rate of pay is substantially less favorable to the employe than exists for similar work in the labor market, the employe has good cause attributable to the employer for quitting. See Cornwell Personnel Associates, Ltd. v. LIRC, 175 Wis. 2d 537 (Ct. App. 1993).

The commission remanded this case for labor market information regarding the prevailing and substantially less favorable rate of pay for the position offered to the employe and for similar work. The commission has modified and affirmed the Appeal Tribunal Decision based on the remand testimony. The labor market analyst's expert opinion was that the substantially less favorable rate of pay for the work offered and similar work was $8.17 per hour or less. He classified the work offered to the employe in the category of club and recreation facility manager and trainee. In this case, the employe was offered $7.25 per hour.

The commission therefore finds that in week 4 of 1999, the employe terminated his work with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b) and Wis. Stat. § 108.04(9).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits as of week 4 of 1999, if he is otherwise qualified.

Dated and mailed July 16, 1999
schowke.urr : 145 : 3 VL 1059.20 SW 844

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The ALJ did not have sufficient evidence in the record to make a determination as to whether the wages, hours and other conditions of employment in the offered position were substantially less favorable to the employe than those prevailing for similar work in the labor market. The commission remanded this matter for such evidence, and its reversal is not based on a differing impression of witness credibility and demeanor, but based on evidence in the record which was not available to the ALJ.

cc:
COUNTRYSIDE ENTERTAINMENT
1950 N MAIN ST
WEST BEND WI 53095


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