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


JEROME J BAUER, Employe

REINDL BINDERY CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400655AP


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 the employer, a book bindery, for about three months as a maintenance mechanic on second shift. His pay rate was $15 per hour, with a .75 per hour differential for working second shift. The employe's last day of work for the employer was February 5, 1999 (week 6).

At the end of his 90-day probationary period, the employer notified the employe it was dissatisfied with his performance and that it had decided to remove him from his current position. The employer offered to move the employe to a new position, which was to be a "blend" of the maintenance mechanic position and of a building maintenance position, involving duties such as cleaning, vacuuming, and snow removal. The new position was to be on first shift, at a pay rate of $12 per hour. Although at the hearing the employer maintained that it planned for the employe's skills to improve while on the first shift job so that he would ultimately be able to return to his former position on second shift, the employe was not informed that the new position was to be only temporary and did not understand this to be the case. He refused the job transfer based upon the lower rate of pay, and performed no work for the employer thereafter.

The first issue to decide is whether the employe quit or was discharged.

The employe had the option of continuing his employment if he was willing to accept a transfer to the "blended" position offered by the employer. However, the employe elected not to do so, thereby severing the employment relationship. Under the circumstances, the separation from employment must be characterized as a voluntary quit.

The next issue to resolve is whether the employe's quitting was for any reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employe 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 employe 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 means that the employe's resignation is caused by some act or omission by the employer which justifies the employe's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employe was offered a transfer to a new position, at a pay rate of $12 per hour, approximately a 23% decrease from his prior pay rate of $15.75 an hour. The new job not only entailed significantly lower wages, but also represented a decrease in skill level from a mechanical job to one which entailed a substantial amount of janitorial work. The demotion was not meant to be a disciplinary action and was not shown to relate to any culpable conduct on the employe's part. The commission has generally held that when an employe quits rather than accept such a demotion or pay cut, the quitting is with good cause attributable to the employer. See, for example, Simonsmeier v. Rehabilitation Center of Sheboygan, Inc. (LIRC, October 17, 1991) (a transfer from janitorial crew supervisor to night janitor with fewer hours and at a reduced skill level provided the employe with good cause to quit); South v. Swatek Sales Corp. (LIRC, August 26, 1992) (a transfer because of poor performance from an area supervisor position to a store manager position at a substantial wage reduction provided the employe with good cause to quit); Meyer v. Linen Center (LIRC, July 14, 1994) (a transfer from an engineering support position to a warehouse production position at a substantial pay decrease constituted good cause for quitting); Smith v. Echo Lake Farm Produce (LIRC July 18, 1995) (a substantial pay cut without a demotion provided the employe with good cause to quit). In the instant case, as in those cited above, the commission believes that the demotion and pay cut justified the employe's decision to quit, and that his quitting as a result was with good cause attributable to the employer.

The commission, therefore, finds that in week 6 of 1999 the employe voluntarily terminated his work with the employer, and that his quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed August 9, 1999
bauerje.urr : 164 :  VL 1059.20

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission's reversal did not involve an assessment of the credibility of the witnesses in this case. The commission does not reverse any credibility determination made by the appeal tribunal, but differs with the appeal tribunal as to the interpretation and application of the law under essentially the same set of facts as found by the appeal tribunal.

cc: ATTORNEY JON DIETRICH
ADELMAN & HYNES SC


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