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


EDWIN P MEINERT SR, Employe

RAPID CAB CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200430RH


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 ineligible for benefits in week 6 of 2000. He is eligible for benefits as of week 7 of 2000, if otherwise qualified. The employe is required to repay the sum of $114.00 to the Unemployment Reserve Fund.

Dated and mailed August 9, 2000
meineed2.usd : 105 : 1 SW 844 SW 853

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission had remanded this case for in-person testimony from a Department of Workforce Development labor market analyst. The labor market report the decision is based upon, listed several categories of work as being similar which, on the surface, do not appear to be so. The Wisconsin Administrative Code defines similar work to be "work in a claimant's labor market which, when compared with a particular job, has substantially equivalent duties and responsibilities and requires substantially equivalent skills, abilities and knowledge." Wis. Admin. Code § 100.02(58). The Department of Workforce Development's grouping of occupations as similar, is based upon several factors. One is the groupings used for the national Guide to Occupational Exploration, which groups occupations by similar interests/aptitudes/ability requirements and other such descriptors. Another guideline is work with the same standard vocational preparation period and same average GED totals for math/language/reasoning requirements. The dissent asserts that backing up a taxi cab is very different from backing up a semi-truck. This is true, but it does not necessarily mean that the two categories are so dissimilar as not to constitute similar work within the meaning of the administrative code definition and the groupings used by the federal occupation guides.

The basis for the employer's appeal was that the wage in question had been reviewed by a Department of Transportation program manager. The employer questions how two state agencies would "differ so greatly" in their numbers. As indicated above, though the notion of similar work is a broad one; it could be that that broadness is not duplicated in Department of Transportation considerations regarding the wage in question.

/S/ PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with result reached by the majority herein and I dissent. The majority decision finds that the work of the cab driver in Rhinelander was work the employe could have refused because the rate of pay was substantially less favorable to the employe because it was in the lowest quartile of pay for similar work. The commission had remanded the case for live labor market testimony. The COED system that the analyst used groups taxicab drivers with tractor-trailer drivers, chauffeurs and forklift drivers. The analyst did testify that "I didn't testify that tractor-trailer drivers are similar work.A tractor-trailer driver wouldn't be similar work." The COED report at the first hearing found that $9.75 was the pay rate at which 75% of workers earn more and 25% of workers earn less. The employe was paid $7.00 an hour that is less than $9.75. The problem with the $9.75 figure is that it includes all tractor-trailer drivers and even forklift drivers whose pay is greater than taxicab drivers and thus the category pay is higher than it should be for taxicab drivers. The employer is a government subsidized cab because there is not sufficient demand for cabs to make it a self-sufficient operation.

The protection of labor standards section of the law is to prevent employes from being forced to take substandard jobs in order to be eligible for unemployment benefits. An employe may refuse a job and still receive benefits under section 108.04(9) "Protection of Labor Standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: ... (b) If the wages, hours (including arrangement and number) or other conditions of work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;."

This provision is a conformity requirement that initially appeared in the Social Security Act in 1935. The federal government published Unemployment Insurance Program Letter #130 (dated 1/6/1947) which on page 3 explained the purpose of the section as "(T)he second, which prevents denial of benefits if wages, hours, or other conditions are substantially less favorable to the individual than those prevailing for similar work in the locality, was designed to prevent the unemployment compensation system from exerting downward pressure on existing labor standards. It was not intended to increase wages or improve the conditions under which workers are employed, but to prevent any compulsion upon workers, through denial of benefits, to accept work under less favorable conditions than those generally to be obtained in the locality for such work."

The 1947 UIPL described "Similar work", on page 4, in the following way: "Similarity of work can best be judged on the basis customarily used by employers and employes as a result of industrial experience: by occupation and grade of skill. As used in prior legislation, "similar work" has in fact been held to mean work in the same trade or occupation. Superficially this would seem to mean that a job is to be compared with others known by the same title.

However, job titles are sometimes misleading. Different occupations and grade designations are often used in different establishments for the same work. Conversely, the same titles are sometimes used for different kinds of work. The actual comparison of jobs must therefore be made on the basis of the similarity of the work done without regard to title: that is, the similarity of the operations performed, the skill, ability, knowledge required, and the responsibilities involved.

In some occupations the similarity of work cuts across industry lines and the differences in the manner in which the work is done are relatively minor. Bookkeepers and boiler operators, for example are likely to do much the same kind of work whether employed by a grain elevator company, a manufacturing concern or a retail clothing establishment...This essential similarity of work which cuts across industrial lines is generally true of most office, janitorial and clerical occupations and to some degree of unskilled common labor.

In most occupations, on the other hand, there is likely to be considerable variation in the work done in different industries, in parts of industries or even in particular types of establishments within industries. There are marked differences, for example, in the work of a glazier in the construction industry and one in automobile or the furniture industry; and within the furniture industry between a glazier on wooden furniture and one who works on metal furniture. Similar differences exist in the nature of work done by a waiter in a "greasy spoon" and one in a hotel dining room and between the work of a dress saleswoman in the bargain basement and a sales person in a dress salon. Thus, even where there is essential similarity, differences in the nature of the tools used, in the size and quality of the materials worked on, or in the clientele to be served, may create characteristic differences in the work which are important to both employers and employes. Such differences are generally to be found in mass-production-process and service occupations."

At the time UIPL#130 was written, a number of jobs were not covered by minimum wage laws. Page 15 dealt with "Substandard Employment - There are some situations which the prevailing standard provisions are not applicable though the work is unsuitable because the conditions of employment are substandard. Thus, though the conditions prevailing for similar work in the locality will ordinarily be better than the minimum standards set by State and Federal law, investigation may occasionally reveal that the wages, hours and conditions prevailing in a particular occupation and locality are below the applicable legal minimum. In such cases where the conditions are in violation of law, even though they are not substantially less favorable than those prevailing, the claimant has good cause for refusing the job under the general suitable work provisions in the State acts."

The U.S. Department of Labor has reaffirmed UIP 130. in new UIPL 41-98 as well as a Change 1 to 41-98. The inquiry may not be limited to the occupation because job titles are sometimes misleading. Often jobs have different skill levels based on experience in the job. In this case a taxicab driver has a much smaller vehicle and does not drive beyond the local area. Backing up a taxi is much different that backing up a semi-truck.

While I appreciate the department's position to use the COED program and I am aware that there has been an effort to reduce the size of some categories, not enough has been done in this case. The Labor Market Analyst clearly indicated that taxicab drivers were not similar to tractor-trailer drivers but he did not comment on the wage for taxicab drivers. The labor market analyst should have been prepared to give testimony about wages for taxicab drivers. I would remand this case again for testimony from a different labor market analyst who should bring figures for wages for taxicab drivers in the Rhinelander area.


___________________________________
/s/ Pamela I. Anderson, Commissioner


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