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


JOSEPH J WEISFELD, Employe

HIEBING CUSTOM KITCHENS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401363AP


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 three weeks as a cabinet maker trainee for the employer, a cabinet and counter top business. He earned $7.50 and his last day of work was May 21, 1999 (week 21).

Before working for the employer, the employe had no cabinet making or carpentry work experience. He most recently worked as a full-time stocker earning $7.00 an hour. That employment ended April 23, 1999 (week 17). The employe's other work experience was as a cleaner earning between $4.75 and $6.50 an hour.

When the employe was hired by the employer he was informed that he would be trained to perform work as a cabinet maker. The employe was supervised during most of his employment with the employer.

On May 19, 1999 (week 21), the employe left a note for the employer's owner indicating that he was quitting effective in one week. On May 20, 1999 (week 21), the employer's owner discussed the employe's quitting with him. At that time, the owner indicated that since the employe was just in training, it "would not pay" to allow him to work past Friday, May 21, and the owner told him that maybe he could contact the new employer and they might let him start earlier. The employe did not contact the future employer and never discussed the matter of his notice with the employer's owner. It is unclear what the dates of the employe's employment were, if he did in fact begin work with the new employing unit. However, as of the time of the hearing, the employe was not performing work for any employing unit.

The issue which must be decided is the effective date of the employe's quitting and whether the employe's quitting was within any exception which would allow for the immediate payment of unemployment insurance benefits.

The employe asserted that he effectively quit his employment on Wednesday June 2, 1999 (week 23). The employe asserted that on the 19th he gave the employer two weeks notice of his quitting. However, the employer's owner testified that the employe gave only a one week notice. Thus, the employe's quitting was effective as of week 22 of 1999. However, the employer would not allow him to continue working during the notice period, thereby suspending his employment for that period of time.

The statutes provide that if an employe terminates the employment with an employing unit, the employe's benefit eligibility shall be suspended until four weeks have elapsed since the week of the quitting, and the employe has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination was: (1) with good cause attributable to the employer; (2) because the employe was physically unable to do the work and had no reasonable alternative; (3) because the health of a member of the employe's immediate family left the employe no reasonable alternative; (4) in lieu of a suspension or termination by the employing unit of another employe's employment; (5) to accept a recall to work for a former employer within 52 weeks after having last worked for such employer; (6) within ten weeks after starting employment which could have been refused with good cause; (7) because the employer made employment, compensation, promotion or job assignments contingent on consent to sexual contact or sexual intercourse; or (8) because the employe left or lost the work due to reaching the employer's mandatory retirement age. In addition, a worker who has quit employment in order to accept more favorable employment may in some cases not be required to meet the requalification requirement described above. Finally, there are exceptions applying to workers who have left positions with labor unions or certain part-time positions, or who have left civilian employment when leaving military service.

One of the above exceptions provides for eligibility for unemployment insurance benefits if a worker terminates employment in order to accept certain other employment, covered by the unemployment insurance statutes. This exception requires that a worker earn wages in the subsequent employment equaling at least four times the worker's weekly benefit rate. In this case, although the employe quit his employment to accept other employment, as of the time of the hearing, he had not earned four times his weekly benefit rate in that subsequent employment. Thus, this exception does not apply.

Additionally, the statutes provide an exception to the quit disqualification if the employe accepted work which could have been refused with good cause and then terminated such employment with the same good cause within the first ten weeks after starting work. There is a further exception to the quit disqualification if the employe accepted work which could have been refused under Wis. Stat. § 108.04(9) and terminated the employment within the first ten weeks after starting the work. Wis. Stat. § 108.04(9) provides that a claimant shall not be denied benefits for refusing to accept new work 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.

The position for which the employe was hired was a cabinet maker trainee position. The Conditions of Employment Database report indicates that for similar work in the labor market area, at least 75 percent of workers earn $8.31 per hour or more. For similar work in the labor market area the estimated pay range is $6.54 to $16.88.

"Substantially less favorable" wages for a cabinet maker are wages below $8.31 per hour. The rate of pay earned by the employe was about ten percent less than that.

The commission therefore finds that the employe accepted work in week 19 of 1999, which he could have 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 he voluntarily terminated that work in week 22 of 1999 within ten weeks after starting that work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits as of week 22 of 1999, if he is otherwise qualified.

Dated and mailed November 12, 1999
weisfjo.urr : 145 : 5  VL 1007.20   VL 1034     SW 844

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the administrative law judge before determining to reverse the appeal tribunal decision. Such conferral is required where the commission is considering reversing an appeal tribunal decision and where credibility was a factor in the administrative law judge's decision. In this case, the commission's findings of fact are virtually identical to those of the administrative law judge, but the commission's reversal of the administrative law judge's decision is the result of its reaching a different legal conclusion when applying the law to the facts found by the administrative law judge. The administrative law judge believed that the employe's lack of cabinet making experience justified the substantially less favorable wage he was receiving when he worked for the employer. The commission believes wages for inexperienced workers are taken into account by the wage range for the field itself. See Cory W. Peed v. Saint Elizabeth Hospital, Inc. (LIRC January 13, 1997).


PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority and I dissent. The employe worked for the employer from May 3, 1999 to May 21, 1999. His previous employment $7 an hour as a stocker at Piggly Wiggly, $6.50 an hour cleaning rugs for the Sheboygan Area School District, $6.50 an hour for Power Clean and $4.75 an hour as a cleaner for St. Peter Clavier School. The employe was hired by the employer as a cabinet maker trainee with no experience. The labor market information contained in the COED report for a cabinet maker is for someone with at least 6 months of training. At the time the employe quit he had been there three weeks.

The purpose of labor standards is not to lower wage scales by requiring people to take substandard jobs in order to be eligible for unemployment compensation. The employe in this case was receiving training which would enable him to receive higher pay in the future. His pay at $7.50 was the highest pay he had received in his work history. Even the carpenter's helper position in another COED report would have required experience of 30 days to qualify as a carpenter's helper. There is no cabinet maker trainee position listed on the COED system. I would not find that this employe had the same good cause to quit his job within the first ten weeks. The job title for the employe is incorrect. One option would be to remand this case to obtain testimony from a labor market analyst as to what the pay for a cabinet maker trainee would be. I really view this case as a quit to take case that required the employe to requalify for benefits before he would be eligible for unemployment.

The majority writes in the memorandum opinion that they believe "wages for inexperienced workers are taken into account by the wage range for the field itself." The wages that are included in the lowest quartile of wages are all the wages gathered in the survey. Not all employers answer the survey. If the wages range from $5 an hour to $25 an hour, any wages at $25 equal 5 jobs at $5 an hour and raise the average. The significantly less favorable number is based on all of the wages and should be at the 25 percentile ranking by distribution. Even though the employe is a new worker, he competes against all workers not just those who are new to the occupation. This fact makes it very important to use the appropriate category. The wages are not adjusted downward to take into account for new workers or a large number of people who have over 20 or 30 years experience at the job.

For all of these reasons, I agree with the administrative law judge that the employe should be ineligible for benefits until his has requalified from his quitting.

________________________________________
Pamela I. Anderson, Commissioner


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