Dentici v. Industrial Commission

• Decision Date: 02 June 1953
• Citation: 58 N.W.2d 717,264 Wis. 181
• Parties: DENTICI, v. INDUSTRIAL COMMISSION.
• Court: Wisconsin Supreme Court

Page 717

58 N.W.2d 717

264 Wis. 181

DENTICI, v. INDUSTRIAL COMMISSION.

Supreme Court of Wisconsin.

June 2, 1953.

Action commenced on August 28, 1952 by Joseph Dentici against Kearney & Trecker Corporation and Industrial Commission of Wisconsin, to review a decision of the industrial commission denying unemployment benefits to plaintiff.

The nature of the case warrants a rather detailed recital of the evidence and the proceedings. Joseph Dentici, claimant, was employed in the assembly department of the Kearney & Trecker Corporation almost continuously from February 1940 to March 2, 1944. On February 29, 1944, claimant was notified that he was to be transferred out of the assembly department into the machine department. He refused to accept such transfer, insisted that he was not 'quitting,' and demanded that he be allowed to continue at his old job. The employer refused to permit claimant to continue in the assembly department and advised him that his refusal to accept the work in the machine department constituted a quitting. Claimant's employment therefore terminated, and subsequently he filed a claim for unemployment benefits under ch. 108 of the statutes of 1943.

The matter was investigated by a district examiner of the unemployment compensation department, and an initial determination held the claim valid. The employer objected to the initial determination and requested a hearing, which was held before a duly authorized appeal tribunal of the commission. The appeal tribunal issued its decision denying the benefits on the basis of the following statute and its findings of fact:

Sec. 108.04(4) and (b), Stats.1943 read:

'An employe's eligibility, for benefits based on those credit weeks then accrued with respect to an employer, shall be barred for any week of unemployment completed after:

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'(b) He has left his employment voluntarily without good cause attributable to the employer, except where the employe has, with the employer's acquiescence and within fifteen days of a known or reasonably anticipated lay-off, left to take another job; provided, moreover, that such employe shall be deemed ineligible for benefits from other previous employer accounts for the week in which such leaving occurred and (except where the employe shows that he worked at the employment which he left in twelve weeks or less and that it would not have been held 'suitable' if refused) for the four next following weeks.'

The findings of fact made by the appeal tribunal were:

'The employer is a manufacturer of machine tools, engaged largely in war production. In 1943, in anticipation of the diminishing importance of machine tool production, the employer began to change over to the machining of airplane parts, truck transmissions, landing craft transmissions, etc. This resulted in a substantial decrease in personnel, and the shifting of workers from departments in which work was becoming slack to departments in which they were needed. It was the employer's policy to avoid laying off employees for lack of work, by transferring them to work for which they were qualified, and if necessary, training them. In making transfers, the individual's qualifications, experience and draft status were the principal determining factors. Seniority was considered only where the other factors were equal. When possible, the worker was allowed to chose the job to which he was to be transferred. The only restriction to the employer's prerogative of transferring employes in the manner which it deemed most advantageous was a provision in its contract with an independent union stating that

"No employee shall be transferred to a job for the purpose of affecting seniority.'

'Work in the assembly department was substantially decreased by the change. The number of workers was reduced from about 450 at the peak in January, 1943, to about 200 at the time of the hearing. In the machine department the decrease was proportionately less, dropping from about 3500 or 3600 workers at the peak to about 2400 at at the time of the hearing. The reduction of assembly department personnel began in November, 1943, with the transference of certain utility men with low seniority. In accordance with the standard procedure, in February the assembly department foreman prepared three lists of men available for transfer, the employe's name appearing on the third list. Approximately 33 men had been transferred previously.

'The employe was first employed by the employer in the paint department in February of 1940. In October, 1940, he was transferred to the assembly department where he worked continuously (except for one two-week period) until the termination of his employment on March 2, 1944. On or about February 29, 1944, the employe was notifed that he was to be transferred out of the assembly department pursuant to the policy described above. The decision to transfer the employe was based on the fact that he had a draft classification of '2B'; he was qualified for machine work by previous experience as a machine operator, and the department foreman was not satisfied with his work. Various jobs were available to the employe in the drill press, milling machine, turret lathe, and engine lathe departments.

'Although the transfer would have reduced the employe's net earnings at the time, the base rate in all of the departments mentioned was the same as he had had in the assembly department. Moreover, due to the diminution of work, the earnings of the workers in the assembly department had been decreasing, and continued to decrease after the termination. At the same time the earnings in the machine departments were increasing because of increased work schedules. It is possible that the employe ultimately would have earned more, had he accepted the transfer, than he would have had he remained in the assembly department.

'The matter was discussed by the employe with his shift foreman, the department foreman, the industrial relations man, and the personnel head. The employe refused to accept a transfer and the employer refused to permit the employe to continue in the assembly department.

'Under the circumstances, it did not appear that the proposed transfer was unreasonable. It was in accordance with the company policy and with the necessities of the employer's change-production program. The employe's contention that the reason for the transfer was to induce him to quit, and that the employer's action was motivated by his...