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

CORY J SCHUTZ, Employe

RESEARCH PRODUCTS CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001619BO

The commission issued a decision in this case on November 24, 1998, which found that in week 9 of 1998, the employe had terminated his employment with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b). The employer appealed this decision to the Circuit Court for Dane County. On July 30, 1999, Circuit Court Judge Paul B. Higginbotham issued a Memorandum Decision and Order which reversed the commission's decision, and remanded it to the commission for reconsideration of the issue of whether the employe's quitting was with good cause attributable to the employer. The commission decision dated November 24, 1998, is hereby set aside.

The commission has reconsidered the evidence and the arguments made by the parties, and after also considering the court's holding, hereby makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 18 months as a padline operator/production machine operator at the employer's plant in Poynette. The employe's last day of scheduled work at the Poynette plant was Friday, March 6, 1998 (week 10 of 1998), but he called in sick that day. The employer is a manufacturer of paint arresters. The employe was a leadworker on the second shift, working 3:00 p.m. to midnight Monday through Friday. His base rate was $8.05 per hour, with a 30- cent-per-hour shift differential, and an additional 15 cents per hour for leadworker pay. The applicable collective bargaining agreement also provided for a production incentive system, under which the employe could expect, but was not guaranteed to earn 130 percent of his base rate. In 1997, the employe earned $25,646.35 from the employer, which when divided by 2,080 hours, results in a net wage of $12.33 per hour. The employe did not work any overtime hours at the Poynette plant.

On or about March 4, 1998, the employer informed the employe that he was to be laid off, but that he could transfer to the employer's plant in Madison. The Poynette plant was within three miles of the employe's residence, but the commute to the Madison plant would have meant a drive of 30 miles each way. When the employe requested further information regarding his pay rate and the position in which he would be working, the employer sent him a memo dated March 4, 1998. The memo indicated that his layoff was to be effective March 6, 1998; that the Madison job would also be second shift but might involve overtime hours; that he would transfer with his present job classification, less leadperson pay, and he would have to bid for whatever jobs were posted; that the jobs being posted in Madison were for utility worker and assembler; and that his base wage would be $8.05 per hour plus the 30-cent shift differential.

The employe refused the transfer offer because of the increased commuting distance and the additional costs this would entail, and because of the uncertainties regarding what his job duties and hourly wage would be in Madison.

The employer's Human Resources Director, Richard Ritter, testified that the average wage earned by its Madison plant workers in March and April of 1998, was 168.9 and 164.5 percent of their base rate, respectively. Mr. Ritter also testified that three individuals who did accept transfers from Poynette to Madison in March of 1998, averaged 149.6 percent, 164 percent, and 193.7 percent of their respective base wages in their first six weeks of employment at the Madison plant. Mr. Ritter did not indicate whether any of these percentages reflected overtime or other pay differentials.

Mr. Ritter's testimony regarding these percentages is not determinative of the question of whether the employe had good cause for refusing the transfer effective March 6, 1998, because at the time of the proposed transfer, the employer did not inform the employe of any of these figures. Indeed, it was unknown at that time what percentage of incentive pay any of the other individuals who accepted a transfer to the Madison plant would earn. The employe was left to speculate as to what his actual hourly wage, including incentive pay, would be.

The commission infers that a reasonable person in the employe's position on March 6, 1998, given the information the employer had given him, could have expected that accepting the transfer to Madison would have resulted in his earning approximately the same rate of incentive pay there as he had earned in Poynette. The job classification was the same and so was the base rate. Accordingly, it would have been reasonable for the employe to have assumed that accepting the transfer would have resulted in a net hourly wage of $12.33, less the leadworker pay of 15 cents per hour. A reasonable person could also have assumed that he would be responsible for commuting costs of $2.43 per hour, (1)  resulting in a net hourly wage of $9.75. The employe's wage in Poynette was subject to reduction for commuting costs of 24 cents per hour, (2)  for a net hourly wage of $12.09. Comparing these net hourly wages ($12.09 and $9.75) results in a net reduction of 19.3 percent.

The employer also asserted that the employe could have limited his wage reduction by carpooling with other workers who were transferred from Poynette to Madison. While this may have been possible, the employe credibly testified that he had no conversation with any of the other employes who accepted transfers, none of them talked to him about forming a carpool, and not all of them lived in Poynette. Significantly, the employer did not indicate that it informed the employe of any carpooling opportunities. Mr. Ritter vaguely testified that it was his "understanding" that " . . . when the five of them first transferred they carpooled together." The commission finds that in this case the evidence of available carpooling is weak. While the commission certainly believes that carpooling is good policy, based on the evidence presented in this case, it is not prepared to find that it would have been available to the employe, or that he would have been required to have participated in it had it been available.

Considering in particular the relatively large percentage of reduction in wage the employe could reasonably have expected that the additional commuting costs would have meant to him, and of less significance the additional commuting time in relation to the probable wage to be earned, as well as the uncertainties with regard to the job duties and wage available to him at the Madison plant, the commission finds that in week 10 of 1998, the employe 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, issued on May 15, 1998, is reversed. Accordingly, the employe is eligible for benefits beginning in week 11 of 1998, if he is otherwise qualified.

Dated and mailed December 3, 1999
schutco.urr : 185 : 2 VL 1080.266 VL 1059.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Pamela I. Anderson, Commissioner (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The majority limits the employe to the guarantee of 130% of the base rate incentive plus the shift differential. The employe had worked for the employer for about one year and a half at the time he was transferred to Madison. The longer the employe worked for the employer the better he did on incentive rates. In the last six weeks he worked for the employer he averaged 162.8% of the base incentive rate. The employe would have lost his $.15 lead worker premium. The employe did not consider the possibility of car pooling which would have reduced his transportation costs.

The employer testified that it was a little less than 25 miles from the Poynette facility to the Madison facility. The employe estimated that it was about 35 miles to the Madison plant. There was no indication that the employe drove the distance. Thus, I would find that the employer testimony was more creditable. The employe was likely to earn $13.52 per hour based on his earnings in Poynette at 162% of incentive and he had a possibility of overtime that he did not have in Poynette. If you figure 50 miles per day at the $.325 per mile the majority used, the employe has a $2.031 per hour cost for mileage or about a 15% reduction of his hourly rate. This does not take into account the possibility of overtime or that the employe had the ability to reduce his costs by car pooling with other workers who were transferred to Madison. The transfer in this case was not permanent and it was possible he could return to work in Poynette.

I would add that the $.325 figure that the majority used is the Federal tax mileage rate. That rate allows the person to account for the costs of driving an automobile but include costs that would be there whether the employe worked in Poynette or Madison. The Federal tax mileage rate is intended for business travel not commuting. Thus while the employe's insurance rate might be somewhat higher because he was commuting farther to work, the entire cost of insurance is included in the rate. The true cost to the employe is less than the Federal tax rate times the number of miles he drives.

The research analyst testified that "a 25-30 mile commute is not out of the ordinary for a worker who makes $13.50 per hour." He further said, "In my opinion, a worker located in Poynette would reasonably travel to Madison for a job paying $10 or more per hour in a manufacturing environment. If there were fewer jobs available in Poynette, that figure would go lower." So at a time of layoffs in Poynette more workers would need to go elsewhere.

I would still affirm the decision of the administrative law judge because I do not believe that the employe had good cause attributable to the employer to quit.

___________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY SUSAN C SHEERAN
MELLI WALKER PEASE & RUHLY SC

Appealed to Circuit Court. Affirmed July 21, 2000.

[NOTE: This decision was issued following a Circuit Court decision which had reversed and remanded a previous LIRC decision in this case.]

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Footnotes:

(1)( Back ) The employe's round-trip commuting distance from Madison to Poynette was 60 miles per day, which at the 1998 federal mileage rate of 32.5 cents per mile equates to $19.50 per day, or $2.43 per hour for an eight-hour day.

(2)( Back ) The employe's round- trip commute in Poynette was six miles per day, which at the 1998 federal mileage rate of 32.5 cents per mile equates to $1.95 per day, or 24 cents per hour for an eight-hour day.