STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

AARON P LINNEMAN, Employee

Involving the account of

STEEL FORMS CONSTRUCTION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 94001195MD


On February 19, 1994, the Department of Industry, Labor and Human Relations issued an initial determination in the above captioned matter which held that in week 4 of 1994 the employe was not with due notice called upon by his current employer to perform work actually available. As a result, benefits were allowed. The employer filed a timely appeal and a hearing was held before an appeal tribunal. On April 1, 1994, the appeal tribunal issued a decision which reversed the initial determination. As a result,benefits were denied. The Department of industry, Labor and Human Relations filed a timely petition for commission review of the appeal tribunal decision.

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 for the employer, a construction company, for three and a half years as a general laborer. The employe customarily worked from Monday through Friday of each week on the day shift. Because the work is generally performed outside, weather conditions can impact upon the availability of work. Therefore, the employe's practice was to contact the employer before reporting to work, in order to determine whether work was available.

During week 4 of 1994 the weather conditions were extremely cold. On Monday of that week the employe called the employer and was told that he did not have to report to work that day because of the cold weather. The employe, therefore, did not report to work. The employe called again on Tuesday and was once more advised that he need not report to work because of the cold. The employe did not report to work until Friday, at which point the weather had become milder.

The issue to be determined is whether the employe was with due notice called on by his current employing unit to report for work actually available during week 4 of 199, and, if so, whether he was unable to perform or unavailable for some or all of that work, within the meaning of section 108.04(1)(a), Stats.

The critical inquiry in this case is whether work with the employer was "actually" available to the employe. As a general rule, work is not actually available when the employer is unable to provide conditions in which an employe can work with reasonable comfort. The courts and commission have traditionally found that workers who decline to work outdoors in extremely cold weather have not with due notice been called upon for work actually available. See Commission decisions 62-A-2312(C); 51-A and 47-A-251. For instance, temperatures and wind chill factors of zero degrees and below were considered so severe as to place an unreasonable risk of injury or illness upon employes working outside on rooftops, and thus prevented the work assignments from being made available to the employes. Ganser Home Improvement Co., Inc. v. LIRC, Tracy S. Kruschke. Scott J. Kasemodelt & Thomas C. Baker, Dane County Circuit Ct. Case No. 84-CV-5952, June 13, 1985.

In Ganser, the court emphasized that the fact that the decision of whether or not to report to work is left to the employe is not controlling. Rather, the question is whether the employe's decision not to report to work was reasonably based on working conditions which made it unreasonable to work and, in effect, prevented the work assignment from being available to the employe. Id. at 2.

In this case, although the record does not establish exactly what the temperatures were during the week in question, both parties agree that it was bitterly cold. It is also undisputed that the employe's work was to be performed outdoors. The employer contends, however, that in spite of the cold, work was available and that it was the employe's decision not to report for work. The commission believes that, even if the employe made the decision not to report to work, this decision was reasonably based upon working conditions which made outdoor work unfeasible and that the severe weather effectively prevented outdoor work from being actually available to the employe.

The commission, therefore, finds that in week 4 of 1994 the employe was not with due notice called upon by his current employer to perform work actually available within the meaning of section 108 . 04 (1) (a) , Stats.


DECISION

The appeal tribunal decision is reversed. Accordingly, the employe's benefits for week 4 of 1994 shall not be reduced by the wages he would have earned had he worked from Monday through Thursday of that week.

Dated and mailed June 3, 1994
164 : CD3000    AA 110 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


NOTE: The commission's decision to reverse the appeal tribunal decision did not involve an assessment of the credibility of the witnesses in this case. The commission does not reverse any credibility determination made by the appeal tribunal but, for the reasons set forth in this decision, differs with the appeal tribunal as to the interpretation on and application of the unemployment compensation law under essentially the same set of facts as found by the appeal tribunal.

cc:
Gregory Frigo
Director
Bureau of Legal Affairs


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