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

LESLIE CSETER, Employe

ALL STATE FREIGHTWAYS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602070MW

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.

DECISION

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

Dated and mailed July 20, 1999
csetele.usd : 105 : 3 SW 844

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer asserts in the petition for review that it continues to have work for the employe, that for that reason the employer should not be charged for unemployment insurance the employe received. The employer notes that it was the employe who indicated he was unable to continue working for the employer. Indeed, the record establishes that the employe purported to quit the employment shortly after discovering that he could not continue working for the employer and still maintain eligibility for a pension benefit he had begun receiving. The record also establishes, however, that the employe was at most an "on call" employe for the employer; this means that his work for the employer was infrequent enough that, for unemployment insurance purposes, he is deemed to have been laid off at the end of a given assignment and "rehired" via subsequent assignments from the employer. The dissent states that it appears that the employe had a part-time job that involved weekend work. That is speculation, though, since the only evidence in the record is that the employe had two assignments from the employer, on successive weekends early in 1999. This is insufficient evidence to establish the inference the dissent accepts as to the permanent or on-going nature of the employment relationship.

Because the employe was not, for unemployment insurance purposes, an employe of the employer between assignments, the employe could not "quit" the employment as he purported to do when he told the employer he could not accept any more assignments from it. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority & I dissent. This is a close case only because the employer did not attend the hearing. The employe testified that he started working for the employer in 1992 and worked part-time for the employer. The employe quit on January 11 because he found out that he could not continue to get pension benefits if he worked in prohibited employment. The employe could not work in the same industry in which the employe earned his pension, or any position covered by the Teamsters, or any position covered by a contributory employer to his pension plan.

The employe last worked the weekend of Jan. 9 & 10, 1999. Prior to that the employe worked Jan. 2. I believe that there is enough testimony to show that the employe quit and was not laid off. It appears that the employe had a part-time job that involved weekend work. If the employe had last worked on January 2, 1999, I would not be writing a dissent but I believe it is clear from the record that the employe was the moving party who ended the employment relationship.

For these reasons, I dissent and would reverse and find a quit not within any of the exceptions which would allow for the immediate payment of benefits.

__________________________________________
Pamela I. Anderson, Commissioner

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