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


RORY L KRAEMER, Employee

NACHREINER PLUMBING & HEATING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95005415DV


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Industry, Labor and Human Relations 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 weeks 43 through 45 of 1995. Thereafter, the employe is eligible for benefits, if otherwise qualified. There is no overpayment as a  result of this decision.

Dated and mailed March 7, 1996
kraemro.usd : 105 : 3 AA 100  BR 325

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION

At issue in this case is Wis. Admin. Code sec. ILHR 128.01, which provides (in part):

ILHR 128.01 Able and available for work. (1) Under s. 108.04 (2), Stats., a claimant shall be eligible for unemployment benefits for any week of total unemployment only if the claimant is able to work and available for suitable work. A representative of the department may test the claimant's ability to work and availability for work through questioning of the claimant and other procedures at any time. The department may not disqualify a claimant under this section for any week for which a benefit check has been mailed prior to the date of an initial determination resolving an eligibility issue under this section, except as provided under sub. (3).

Specifically, the department argues that the phrase "this section" in the last sentence of the quoted material refers only to sec. 108.04 (2) , Stats. This assertion by the department is contrary to basic rules of statutory construction, however.

When a phrase such as "this section" is used, it refers to the section of the statutes or administrative code in which it is found. The phrase is found in section ILHR 128.01 of the administrative code, which, according to the department's own manual, concerns "able and available" issues arising from secs. 108.04 (1) (b) 1., 108.04 (7) (c) , and 108.04 (8) (e) , Stats. See Unemployment Compensation Manual, vol. 3, part VII ch. 3, sec. D.   Part II of this section of the manual lists the so-called "able and available" standard of Wis. Admin. Code sec. ILHR 128.01 (2).   Part XI lists circumstances requiring the "able and available" analysis;  these include the three parts of sec. 108.04, Stats., listed above.

The department and commission apply the ability to work and availability to work criteria of Wis. Admin. Code sec. ILHR 128.01 (2), to "able and available" analyses under all of the chapter 108 provisions containing an "able and available" requirement. The commission has applied the prohibition against retroactive disqualification now at issue in cases involving sec. 108. 04 (7) (c) , Stats. See Anton v. Ashley Furniture Industries, Inc., No. 90-002056LX (LIRC, 4/29/91).  Finally, the commission has characterized the prohibition as "an expression of a policy of not retroactively disqualifying a claimant on an able and available issue." Flood v. Mid-Wisconsin Motor Inn, No. 85-04120AR (LIRC, 3/12/86).  For these reasons, it should be clear that the prohibition against retroactive disqualification runs to all "able and available" determinations made pursuant to the criteria in Wis. Admin. Code sec. ILHR 128.01.

cc:
Rory L Kraemer

Gregory A Frigo
Director
Bureau of Legal Affairs


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