In the matter of the unemployment benefit claim of

ROBERT G HANSON, Employee

Involving the account of

CINTAS CORPORATION NO 13, Employer

The Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that in week 12 of 1993, the employe failed to accept an offer of work but that the wages, hours and other conditions of that work were substantially less favorable to the employe than existed for similar work in his labor market. As a result, benefits were allowed. The employer filed a timely appeal to an appeal tribunal. On June 11, 1993, the appeal tribunal issued a decision which found that the employe did not fail to accept an offer of work in week 12 of 1993. Accordingly, benefits were allowed. The employer filed a timely petition for commission review of the adverse appeal tribunal decision. By order dated February 3, 1994, the commission remanded this matter for additional labor market testimony.

Based upon the applicable law, records and evidence in this case, including testimony offered at the remand hearing, the commission makes the following:

The employe worked about two years as a route sales driver for a dry cleaning business. His last day of work was March 18, 1993 (week 12). The employer was in the process of selling its business to the named employer, Cintas Corporation. A representative of Cintas contacted the employe on or about March 15, 1993, regarding continuing work for the new owner as a route sales driver. The employe was offered work as a driver on his established route minus the retail deals he had with the previous employer. Wages were not discussed, but Cintas was prepared to pay the employe a salary of $415 per week. The employe indicated that he was looking forward to the opportunity to work with Cintas Corporation. The employe was scheduled to meet with Cintas on March 17, 1993, to discuss his wage. The employe and employer also discussed the employer's requirement that the employe make a round trip to Madison, Wisconsin, from his home in Janesville, Wisconsin, to pick up the employer's vehicle with which he was to make his rounds. Although the employer typically required drivers to pick up and drop off its vehicles everyday, the employer had in the past made exceptions and allowed drivers in certain geographical areas to take the trucks to their homes in the evening.

The employe did not appear for the March 17, 1993, meeting to discuss his wages and use of the employer's vehicle. On the morning of March 18, 1993, the employe telephoned the employer and indicated he was confused regarding whether of not he was supposed to appear at the employer's business on March 17. Another meeting was then set up for March 18, 1993 (week 12). The employe did not show for the meeting for March 18, 1993, and the employer had no further contact with the employe.

The issue to be determined is whether the employe failed to accept an offer of work in week 12 of 1993. If the employe did in fact fail to accept an offer of work, the second issue is whether his failure was with good cause.

The appeal tribunal found that there was no offer of work made to the employe. The appeal tribunal noted that the terms of the proposed employment were still in negotiation and not all relevant conditions of the employment were communicated to the employe. The appeal tribunal found that absent such information, the employe could not have formed the specific intent necessary to enter into a binding contract of hire. The commission disagrees with the appeal tribunal's conclusion that the employe did not fail to accept an offer of work.

It is true that the specific conditions of the employe's employment were not communicated to him. However, the reason they were not communicated to the employe was that the employe failed to appear at two meetings to negotiate the terms of his employment. When an employe by actions or words dissuades or prevents an employer from offering employment, the employe has, in reality, refused an offer of work.

The second issue to be decided is whether the employe's refusal was with good cause because the wages, hours or other conditions of the employment were substantially less favorable to the employe than existed for similar work in his locality, pursuant to secs. 108.04 (8)(a) and 108.04 (9), Stats.

The appeal tribunal further found that even if a legally binding offer had been made, the employe had good cause for refusing the work since the commuting distance was in excess of the one-way commuting distance in his labor market. The commission disagrees with the appeal tribunal's finding that the commuting distance of the offered work provided good cause for refusing the offer of work.

The employe testified that he refused the offer of work i.e. he did not pursue negotiations, because of his belief that he would have been required to drive his own vehicle to Madison, to pick up the employer's vehicle, return the employer's vehicle to Madison and then return to his residence in his own vehicle. The employe testified that it was not cost effective for him to accept the position. However, as indicated above, whether the employe would be required to use his own vehicle or was to use the employer's vehicle for the commute was subject to negotiation. Since the employe did not demonstrate that he in fact would have been required to use his own vehicle, he could not rely on commuting distance to justify his refusal to accept the employer's offer of work. The commission notes that pursuant to the remand in this matter from the labor market testimony established that although 20-25 percent of individuals commute to Madison from Janesville, the acceptability of such commute changes significantly if the commute is done with an employer provided vehicle because the greatest argument against commuting is the wear and tear on one's personal vehicle. Since the employe's objection to the commute was based on the use of his personal vehicle, had the employe pursued negotiations it was possible to eliminate such objections based upon use of the employer's vehicle.

The employe's rate of pay was also subject to negotiation. In any event, the employer's contemplated wage offer was not substantially less favorable to the employe than existed for similar work in his labor market. Finally, the employe did not establish that the skill level of the offered work was of a lower grade than his former position, under sec. 108.04 (8)(d), Stats.

The commission therefore finds that in week 12 of 1993, the employe failed to accept an offer of suitable work, within the meaning of sec. 108.04 (8) (a), Stats., and that the wages, hours (including arrangement and number), and other conditions of that work were not substantially less favorable to the employe than those prevailing for similar work in his labor market area; and the employe, as a claimant for unemployment benefits, was not for any other reason justified in failing to accept that work.

The commission further finds that the employe was paid benefits in the amount of $8,532, for weeks 14 through 49 of 1993, for which he was not eligible and to which he was not entitled, within the meaning of sec. 108.03 (1), Stats., and that pursuant to sec. 108.22 (8)(a), Stats., he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 12 of 1993, and until four weeks have elapsed since the end of the week in which the failure occurred and he has earned wages in covered employment earned after the week of the failure equaling at least four times his weekly benefit rate which would have been paid had the failure not occurred. The employe is required to repay the sum of $8,532 to the Unemployment Reserve Fund.

Benefits otherwise chargeable to a contribution employer's account will be charged to the fund's balancing account whenever an employe of that employer fails, without good cause, to accept suitable work offered by that employer.

Dated and mailed April 22, 1994
132 : CD8590  SW 800  SW 845.01 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission has not disagreed with any credibility determination made by the administrative law judge. Rather, the commission disagrees with the legal conclusion that no binding offer of work was made to the employe. The commission further disagrees that reliance on the commuting distance established good cause under sec. 108.04 (8) (a), Stats., for failing to accept the employers offer of work. In this regard, the commission's decision is based on testimony adduced from the labor market analyst at the remand hearing. This testimony was not available to the administrative law judge when he made his original decision.

NOTE: The Department will withhold benefits due for future weeks of unemployment in order to offset payment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. 0. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

Federal law does allow for waiver of an overpayment of EUC when the overpayment was not the fault of the claimant and recovery would case extraordinary hardship. An application for waiver can be obtained by sending a letter to: Unemployment Compensation Division, EUC Unit, P. 0. Box 7965, Madison, WI 53707.

cc: 
James J Terrill
Vice President
c/o Robin Inc

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