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

WENDY L OBERSTADT, Employe

VAN DYN HOVEN IMPORTS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98402679AP

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 eligible for benefits beginning in week 38 of 1998, if otherwise qualified.

Dated and mailed April 22, 1999
oberswe.usd : 132 : 1  VL 1059.07

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employe voluntarily terminated her employment with good cause attributable to the employer. The commission has reviewed the record in this matter and agrees with the appeal tribunal's Findings of Fact and Conclusions of Law. The employer maintains in its petition that its actions were within industry standards and were not unethical or deceptive. However, after reviewing the record the commission agrees with the appeal tribunal's ultimate conclusion. Among other things, the employer was in fact withholding sums from workers' pay for 401(k) purposes although there was no 401(k) in place. Whether the employer considers such actions unethical or deceptive, it is difficult to believe that it is standard industry practice to withhold sums from workers' pay to place in a 401(k) that does not exist, and thereafter return the funds to the workers after depriving the workers of the use of their money. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: GERALD G VAN DYN HOVEN
C/O VAN DYN HOVEN IMPORTS LLC

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