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


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 18 months as a padline operator/production machine operator, for the employer, a manufacturer of paint arresters. In the employe's position he also worked as a leadworker. The employe worked 3:30 p.m. to midnight, Monday through Friday. He was paid an hourly rate of $8.05 per hour plus a $.30 shift differential. The employe also received $.15 per hour as leadworker pay. Finally, the employer had an incentive system. Under that system, 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. This translates into an hourly rate of $12.329.

On March 5, 1998, the employe was notified that he would be laid off. He was then notified that he could transfer to the Madison facility. The Poynette plant was within three miles of the employe's residence. The commute to the East Main Street, Madison location would be an approximate 30 mile one way trip or 60 miles round trip. The employe requested further information regarding his pay rate and the position he would be working in. He was sent a memo from the employer (Exhibit 1), which indicated that he would be working 3:30 p.m. to midnight, Monday through Saturday and overtime might be necessary until 1 a.m., Monday through Friday and on Saturday from noon to 6 p.m. He was notified he would transfer into his present classification (less the leadperson pay) and jobs would be posted which he could bid for. It was indicated that his pay would be set at "Wage Step 5 as a Padline `A' Operator, $8.05 plus the $.30 second shift premium." He was notified the jobs posted in the Madison plant were utility workers and assemblers.

Based on the job offer, therefore, the employe would either work as a utility worker or assembler. However, the quoted rate of pay was $8.05 per hour plus the $.30 shift differential. Including the 130% of base rate incentive, the employe's hourly rate would be $10.465 plus the $.30 shift differential or $10.765 per hour. The employe rejected the position because of the commuting distance, because he did not know what position he would be working in, and because he did not know how much per hour he would be making.

There was testimony offered that three other workers that transferred from Poynette to Madison averaged 149%, 164%, and 193% of their base rate. The average Madison plant percentage of base rate was 164%.

A research analyst for the department, Terry Ludeman, testified that there is a strong correlation between the distance a worker will travel to work and wages. Most commuters who come into Madison from some distance earn $12 or $13 per hour. A 25-30 mile commute would not be out of the ordinary for someone making $13.50. Mr. Ludeman identified two COED reports one based on an offered wage of $12.35, and one with an offered wage of $15.35. (Exhibit 7) The commuting distance for the former is 20.64 miles and for the latter 34.26 miles. Mr. Ludeman testified that in his opinion a worker in Poynette would reasonably travel to Madison for a job paying $10 per hour or more in a manufacturing environment.

The initial issue to be decided is whether the employe voluntarily terminated his position or was discharged. The second issue is whether the employe is eligible for benefits given the nature of the separation.

The ALJ found that the employe quit his employment by refusing to transfer. The commission agrees with such finding. The employe had the chance to continue the employment relationship but chose not to. The employe argues he was first laid off and then offered the Madison position, which is correct. However, the lay off notice and transfer offer were made at the same time.

In Farmers Mill of Athens, Inc. v. ILHR Dept., 97 Wis.2d 576 (Ct. App. 1980), a worker returned to work following an injury and was offered employment in a similar capacity at the same monthly salary at the employer's new facility 25 miles away. The worker refused. The commission found the employer unilaterally imposed conditions upon the worker's employment that would, in effect, have resulted in a twenty-five percent pay reduction because of commuting costs. (Calculated using 15 cents per mile for the fifty-mile daily round trip at an average of 23 working days per month and subtracting that amount from the worker's pay.) The commission found that such change in the employment conditions was substantial enough to constitute good cause attributable to the employer for quitting. In doing so, the commission rejected the employer's contention that the worker's salary would eventually have increased as speculative. The commission noted that the worker was given no definite assurances concerning a salary increase commensurate with his additional transportation costs. The courts agreed.

The commission finds that the employe voluntarily terminated his position with good cause attributable to the employer. First, the commission cannot speculate as to the wage the employe could have earned, either based on his prior history in the Poynette facility as a padline operator, nor based on what others made at the Madison facility. The job actually offered was for $8.05 per hour plus an expected 130% of base and a .30 cent shift differential, or $10.765 per hour.

Along with a decrease in wage rate the employe would have increased commuting costs. The commission uses the Federal tax mileage rate, 32.5 cents per mile in 1998, in determining commuting costs. See Ball v. School District of Kewaskum, UI Dec. Hearing No. 91607330WB (LIRC Aug. 14, 1992). The evidence indicates that the employe's commuting distance would increase by approximately 54 miles. He went from a commuting cost of $1.95 per day or 24 cents per hour, to a commuting cost of $17.55 per day or $2.19 per hour. The employe went from an hourly rate, considering commuting costs, of $12.089, to an hourly rate, when considering commuting costs, of $8.575, a wage reduction of approximately 30 percent. The increased commuting costs along with the decrease in hourly rate (including "assured" incentive amount) provided the employe with good cause attributable to the employer for quitting.

The commission therefore finds that in week 9 of 1998, the employe voluntarily terminated his work with the employer 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 11 of 1998, if he is otherwise qualified.

Dated and mailed: November 24, 1998
schutco.urr : 132 : 1 VL 1080.266 VL 1059.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission has not reversed the decision of the administrative law judge based on a differing assessment of witness credibility or demeanor but because it has reached a different legal conclusion when applying the law to the facts. The commission does not believe it appropriate to speculate on the amount the employe might have earned, but believes it must consider the amount the employer was basically assuring the employe he would earn. The employer and not the employe altered the employment relationship in terms of the employe's commuting distance, the commission does not consider it to be the employe's obligation to lower the costs of commuting by, for example, carpooling.

The commission determined that the employe is eligible for benefits under Wis. Stat. 108.04(7)(b), therefore it has not determined whether he would be eligible for benefits because the wages, hours or other conditions of the work offered were substantially less favorable to him than existed for similar work in his labor market. See Wis. Stat. 108.04(9).

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 wage for the employe to the guarantee of 130% of the base rate incentive plus the $.30 shift differential. The employe had worked at the Poynette plant under the same kind of pay schedule and had averaged 162.8% of the base incentive rate in his last six weeks. The lowest amount paid to a worker who transferred to Madison was 149% and the others were paid 164% and 193% of the base incentive rate. While it is true that the employe would lose $.15 lead worker premium he would not have been required to drive by himself. He did not consider the possibility of car pooling which would have reduced his transportation costs.

The labor market analyst for the department indicated that a worker in Poynette would reasonably travel to Madison for a job paying $10 per hour or more in a manufacturing environment. The wage was not substantially less favorable to the employe if labor standards are applied.

I do not find that the employe had good cause attributable to the employer to entitle him to quit and be eligible for immediate benefits. For these reasons I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


Appealed to Circuit Court. Reversed and remanded July 30, 1999. [Court Decision Summary].
Re-decided by LIRC December 3, 1999. [December 3, 1999 LIRC decision].

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