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


SCOTT S MUESKE, Employe

EASTBAY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401414AP


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 based on wages paid by the named employer if the employe is otherwise eligible because of the loss of full-time employment.

Dated and mailed September 9, 1999
muesksc.usd : 164 : 5  VL 1039.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer's representative argues that the employe was aware of the drive time and distance when he accepted the employment and knew that he would not be working for his primarily employer during the summer. The employer's representative suggests that these factors render the employe ineligible for benefits. The commission disagrees. Although the employe was aware of the commuting distance when he accepted the job with the employer, that condition of employment did not pose a problem for him while he was also working for his primary employer. For purposes of the statutory exception in question, the relevant point is not that the commute was once viable for the employe, but that after the employe's full-time employment was terminated, the commuting distance rendered it economically unfeasible for him to continue in his part-time employment. The conditions set forth in Wis. Stat. § 108.04(7)(k) are satisfied, whether or not the employe was aware that he would be laid off by his primary employer over the summer months.

The employer's agent also argues that if the employer had been aware about the driving distance and hours, it would have made more hours available to the employe. However, the employer did not make this argument at the hearing, and the evidence in the record contains no evidence in support of this assertion. For purposes of determining whether the employe quit work which was "part-time," within the meaning of the statute, it is the intent of the parties at the time of hire along with a consideration of what hours the employe actually worked which are relevant. Here, the employe was hired to work four hours a day and did, in fact, work only four hours. Based upon all the circumstances, the commission agrees with the appeal tribunal that the employe quit part-time work because the loss of his full-tine employment made it economically unfeasible for him to continue, and that his quitting fell within Wis. Stat. § 108.04(7)(k). Accordingly, the appeal tribunal decision is affirmed.

cc: EASTBAY INC

NIKKI LITTLE
HEARING COORDINATOR
C/O GATES MCDONALD


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