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


SHANE R WALKER, Employe

WALKER METAL BUILDING ERECTORS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99004047FL


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 about two years as a mechanic for the employer, a metal building erector company. His last day of work was September 25, 1999 (week 39). The employe had been working as a mechanic at $12.50 an hour. On September 24, 1999, the employer informed the employe that it wanted someone with more experience as a mechanic. He was offered a position as a member of a crew putting up metal buildings. The employer offered the employe $13.00 an hour, or 50 cents more than he made as a mechanic. The employe was given a week to think about the situation. He refused the offer of work in week 40 and therefore his employment ended.

The issue to be decided is whether the employe voluntarily terminated his work for any reason which permits the immediate payment of unemployment insurance benefits.

The employe objected to the new position because he considered it dangerous. The employe did not wish to work on top of buildings because he suffers from migraine headaches and dizziness. The employe also objected because the new position would require that the employe travel to job sites. The employer's job sites can be all over the state. The employer has workers leave the shop at 5:30 a.m. and he begins paying at 7:00 a.m., whether the workers are at the building or not. If a job is two hours away workers stay all week or until the job is finished. The employer puts the workers up in a motel room and pays $25.00 per day subsistence. At the hearing the employer described the job the employe was going to do as a "metal building assembler."

The commission finds that the employe voluntarily terminated hie employment with good cause attributable to the employer. The employer substantially changed the conditions of the employe's employment. No one objection by the employe would constitute good cause attributable to the employer for refusing the work but collectively the changes were substantial. The employer changed the nature of the duties, the hours of the work and the travel required by the work. The employe objected to all the new conditions. Finally, the new position involved unpaid travel time.

The commission therefore finds that in week 39 of 1999 the employe voluntarily terminated his employment 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 beginning in week 39 of 1999, if he is otherwise qualified.

Dated and mailed February 4, 2000
walkesh.urr : 132 : 1 VL 1005  VL 1080.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission does not reverse the ALJ's decision based on a differing impression of witness credibility. The facts are basically not in dispute. The new position offered the employe would involve different duties, the employe would be required to travel, the employe would not be compensated for all travel, and the employe would be required to stay overnight at some locations. Together these substantial changes to the employe's position provided him with good cause attributable to the employer for terminating his work. The commission notes that notwithstanding disagreement about how much travel time would be unpaid, the fact is that travel was required for which the employe would not be paid. The commision does note that the document relied by the ALJ to determine that the wage offered was not substantially less favorable to the employe than existed for similar work was hearsay, uncertified, and did not establish what work was "similar" to that offered the employe or the conditions of such similar work in his labor market.


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