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

MARK T TROWBRIDGE, Employe

ERIKS MIDWEST INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606333WK

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 claimant worked for over 22 years for Harnischfeger Corp. as an overhead crane operator. He was laid off by that employing unit in October of 1998 due to lack of work. Subsequently, he applied for and was enrolled in an approved training program under Chapter 29 of section 1661 of the United States Code beginning in February of 1999, to provide him computer repair training, so that he could be employed as a network administrator. He regularly attended classes from February of 1999, from 8:00 a.m. to noon, Monday through Friday. He was hired by the named employer shortly after he entered the approved training program in February of 1999, to perform warehouse duties from 1:30 to 10:00 p.m., five days a week. In his last month, the employer asked him to work from 10:30 a.m. to 7:00 p.m. He explained that he could not work those hours because he was attending training classes until noon. Accordingly, the employer permitted him to report to work after he had completed his classes at around 1:00 to 1:30 p.m. on an indefinite basis. He notified the employer on or around August 2, 1999, that he would be terminating his employment effective on August 6, 1999, because he was paying child-support and needed a full-time position, as well as insurance for his children and that he could not work the hours that the employer offered him.

The issue which must be resolved is whether the employe quit for a reason which disqualified him from receiving unemployment insurance benefits.

In this case, the employe has failed to establish that his quitting was with good cause attributable to the employer or for any other reason which would allow immediate benefit payment. However, Wis. Stat. § 108.04(7)(a) allows the employe to leave unsuitable work with an employer to continued training under 19 USC 2296, without having to meet the requalification requirements that would normally apply.

The ALJ correctly noted that the claimant did not quit solely to continue his training because the employer would have allowed the claimant to continue working part-time so that he could still attend school. The commission does note however, that the employe would have continued working for the employer had the employer not changed his hours so that his hours interfered with his classes. The employe's desire to have a full-time job and health insurance for his children was reasonable. Further the ALJ correctly noted that the claimant did not quit to enter TRA training because he was already enrolled in training when he started working for the employer. However, the employe is exempt from the quit/requalification requirements of the unemployment insurance law because he is enrolled in approved training. See Murphy v. Northwest Hardwoods Inc., 183 Wis. 2d 205 (1994).

The commission therefore finds that in week 32 of 1999, the employe terminated work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a), and that this quitting was not for any reason constituting an exception to that section.
The commission further finds that the employe left unsuitable work with the employer to continue in training under 19 USC 2296.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 32 of 1999, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed November 24, 1999
trowbma.urr : 145 : 1 VL 1004 VL 1039.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who issued the decision. The commission does not reverse the ALJ's decision because it disagreed with the ALJ's findings of fact but because it reached a different legal conclusion when applying the law to those facts.

cc: ERIKS MIDWEST INC

ATTORNEY THOMAS E SMITH
BUREAU OF LEGAL AFFAIRS

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