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

JEFFREY A ROCHE, Employee

AMERICAN SNOW REMOVAL LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01400298AP


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On November 22, 2000, the employer sent the employee a letter entitled "OFFER OF EMPLOYMENT" which indicated that the employer "is in need of on call as needed snow plow truck drivers and snow shovelers." The employer gave the employee until November 25, 2000, to respond. The employee responded to the employer's letter by indicating that he had restrictions involving bending and standing and a lifting restriction of ten pounds. He also indicated driving was limited from 8 a.m. to 5 p.m. because of the medication he was on and he could not do CDL driving because the law prohibited driving a commercial vehicle while on a narcotic. The employee indicated he was available to drive Monday through Friday from 8 a.m. to 5 p.m. The employer did not contact the employee because it had no work within his restrictions, in particular the restriction on hours. The vast majority of snow removal work occurs between 5:00 p.m. and 8:00 a.m.

The issue to be decided is whether the employee had good cause for failing to accept the employer's offer of work.

The employee did not establish that he was limited by his doctor to working between 8:00 a.m. and 5:00 p.m. However, the employee indicated that the hours of work were a factor in his desire not to accept the employer's offer. The employer's offer did not guarantee a set number of hours and did not guarantee a particular arrangement of hours. The employee preferred full-time work to the one or two days per week that the employer's offer would provide. While the employer testified that the employee could have worked over thirty hours per week, the employer's testimony was based on what the employer knew in February of 2001. The employer could not predict the weather and therefore was unable to anticipate its need for the employee's services. Certainly in Wisconsin snow will fall. The amount of work the employer had for the employee is based on factors not within the its control and not within its knowledge.

Overall, it appears the employee was trying to block the employer's offer by setting forth restrictions that he knew were inconsistent with the job of snow plowing. However, the employer testified that the offer was for on-call work. There was no guarantee of hours. A conditions of employment database report reflects that part-time work outside of first-shift hours is substantially less favorable to the employee than exists for similar work in the employee's labor market. The commission notes that the question is not what prevails in the snow removal business, but what prevails for snow removal and similar work.

The commission therefore finds that in week 49 of 2000, the employee failed to accept an offer of suitable work within the meaning of Wis. Stat. § 108.04(8)(a), but that the hours of that work were substantially less favorable to the employee than existed for similar work in his labor market and that, pursuant to Wis. Stat. § 108.04(9), benefits shall not be denied.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 49 of 2000, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed July 19, 2001
rocheje . urr : 132 : 1 : SW 844

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ did not consider that the hours of work were the employee's primary motivation for rejecting the employer's offer. The commission finds the hours were a factor into the employee's decision.

cc: Attorney Robert J. Craanen


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uploaded 2001/07/23