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


TONY GAMSKY, Employe

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606757MW


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 about three months as a cable box assembler for the employer, a staffing service. The employe's last day of work was August 20, 1999 (week 34).

The issue which must be decided is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The employe quit to return to school. He is attending MATC, where he is a full- time student studying welding. This is approved training under TRA (Trade Readjustment Act) for dislocated workers. The employe previously worked for Allen-Bradley. He was laid off from that position in October of 1998.

While working for the employer, he was assigned to ICS where he assembled and repaired cable boxes. He was paid a wage of $7.50 per hour.

In this case, the employe's wages were substantially less favorable than those prevailing for similar work in the locality. A substantially less favorable wage rate for an assembler initial determination $8.55 per hour. Since the employe was earning $7.50, his wages were substantially less favorable to him than those prevailing for similar work in his location. However, to be eligible under the statute, the employe must quit that work within ten weeks of having accepted it. In this case, the employe worked for the employer for about 14 weeks, and therefore, this exception does not apply to him. 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, under Wis. Stat. § 108.04(16)(b) an employe can leave unsuitable work with an employer to continue training under 19 USC 2296, without having to meet the normal requalification requirements.

The employe in this case quit his job to begin his approved training in welding. 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 within the meaning of Wis. Stat. § 108.04(16)(b).

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employe is eligible for benefits beginning in week 34 of 1999, if otherwise qualified.

Dated and mailed December 15, 1999
gamskto.urr : 145 : 6 VL 1034  VL 1004

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission does not reverse the ALJ based on a different assessment of witness credibility and demeanor but reverses his decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.


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