In the matter of the unemployment benefit claim of

LE ANN I NORWOOD, Employee

Involving the account of

ADIA PERSONNEL SERVICES, Employer

The Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that in week 30 of 1994, the employe failed to accept an offer of work but that the wages, hours and other conditions of than work were substantially less favorable to the employe than these prevailing for similar work in the labor market. As a result, benefits were allowed. The employer filed a timely appeal to an appeal tribunal. On November 16, 1994, the appeal tribunal issued a decision which found that the employe did not fail to accept an offer of work from the employer and therefore affirmed the initial determination's granting of benefits. The employer filed a timely petition for commission review of the adverse appeal tribunal decision.

Based on the applicable law, records and evidence in this case, and after consultation with the administrative law judge regarding witness credibility and demeanor, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about six months as a data entry worker for the employer, a temporary help agency. The employe's last assignment with the employer ended on July 8, 1994 (week 28). That assignment involved data entry work paying $8 per hour. The assignment was located in Mundelein, Illinois.

On July 19, 1994 (week 30), the employer referred the employe to an interview with a client for an assistant buyer position. The job was full-time, starting at $9 per hour, and located in Libertyville, Illinois, which was located ten minutes from the employe's previous assignment with the employer.

On July 20, 1994, the client informed the employer that it wished to hire the employe. On July 20, 1994, the employer attempted to contacted the employe. The employer spoke with the employe's mother who indicated that the employe said to tell the employer that she was not interested in the job. Later that same day, the employer spoke directly to the employe. At that time, the employe indicated that she did not want the job because it did not involve purchasing but was more like secretarial work. The employe also indicated that she wanted to be closer to home.

The employe's application for employment with the employer indicates that she has secretarial, clerical and typing experience/skills. Although there is a spot to indicate purchasing experience/skills, there is no indication on the employe's application for employment that the employe has skills or experience in purchasing.

The position offered the employe was described as that of a purchasing secretary. A substantially less favorable rate of pay for purchasing secretaries is a rate of pay below $8.10 per hour.

The issue to be decided is whether the employe failed to accept an offer of suitable work and, if so, whether she had good cause for refusing such offer.

The commission first determines that the employe did in fact refuse an offer of work. While the employer did not specifically transmit the offer to the employe, the employer did not do so for two reasons. First, the employer had already learned from the employe's mother that the employe was not interested in the job. Second, when the employer telephoned the employe regarding the position, the employe offered two reasons why she did not want to accept the job, the fact that it did not involve purchasing and the distance from her home. The employe, by imparting to the employer the fact that she did not want the position because of its duties and location, clearly imparted to the employer that she did not want the assignment. The employe essentially "blocked" the employer's job offer in this case. 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 had good cause for refusing the employer's offer of work. The commission determines that she does not.

The employe's first stated dissatisfaction with the offered position was the fact that it did not involve purchasing or buying. However, the fact remains that the employe was capable of performing the work. Unemployment compensation is designed for individuals who are out of work through no fault of their own. In this case, work was available which the employe was able to do, but did not prefer to do. Further, the application submitted regarding the employe's experience and skills indicates experience in secretarial and clerical work. The employe has not demonstrated an extensive background in either purchasing or buying. The employe's second stated reason for refusing the offer was the distance between the client's place of business and her home. However, the commission notes that the employe had only recently concluded an assignment that was only ten minutes away from the offered assignment. Further, the offered assignment paid more than $1 per hour than her previous assignment with the employer. That rate of pay was also above the substantially less favorable rate, accordingly, the employe would not have good cause for refusing the assignment based on the wage rate.

The employe also maintained at the hearing that she refused the assignment because she was anticipating an offer of work from another employer. However, the fact remains that at the time she refused the offer from the employer she did not have a definite offer of work from any other employing unit. Further, the employe testified that the position for which she was applying with another employing unit did not involve either purchasing or buying, duties she claimed to be seeking and relied upon by her for refusing the employer's offer of work.

It is clear from the employe's testimony that her main reason for refusing the employer's offer of work was the fact that she wished to be employed in a position involving purchasing or buying. However, the position offered to the employe involved essentially the same duties as the employe had recently performed for the employer. Finally, the employe, as a claimant for unemployment compensation, is not entitled to wait for the ideal job to materialize. As noted by the Supreme Court of Wisconsin in Roberts v. Ind. Comm., 2 Wis. 2d, 399 (1957):

In brief, the purpose of this statute is to stabilize employment and to minimize the loss of income when an employe involuntarily is out of work through the fault or misfortune of the employer. The statute was not enacted to provide relief in lieu of wages when reasonable work is available which the employe can but will not do.

The wages, hours (including arrangement and number), and other conditions of the work offered were not substantially less favorable to the employe than those prevailing for similar work in the employe's 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 therefore finds that in week 30 of 1994, the employe failed, without good cause, to accept an offer of suitable work, within the meaning of section 108.04 (8)(a), Stats.

The commission further finds that the employe was paid benefits in the amount of $864 in weeks 30 through 34 of 1994, for which the employe was not eligible within the meaning of section 108.03 (1), Stats., and to which the employe was not entitled.

The commission further finds that waiver of benefit recovery is not required under section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), the overpayment was not the result of a departmental error. See section 106.22 (8)(c)2., Stats. Rather, the overpayment in this case results from the commission's reversal of the appeal tribunal decision.

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 30 of 1994, and until four weeks have elapsed since the end of the week in which the failure occurred and the employe has earned wages in covered employment performed after the week of the failure equaling at least four times the employe's weekly benefit rate which would have been paid had the failure not occurred. The employe is required to pay the sum of $864 to the Unemployment Reserve Fund. Part of the check for week 32 of 1994 was withheld as a forfeiture, since the employe is now ineligible for such week, it cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $46.

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

Dated and mailed March 22, 1995
132 : 3920  - SW 800 SW 845.01

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge did not credit the employer's testimony that the employer actually transmitted the offer to the employe based on the printout submitted by the employer. The commission does not disagree with the administrative law judge's credibility determination relative to whether the employer actually transmitted the offer, but determines that the employer did not transmit that offer because the employe blocked such offer. Under the Unemployment Compensation Law, the employe's action in blocking the offer of work constitutes a failure to accept that work. The commission also disagrees with the legal conclusion reached by the administrative law judge that even had the employe refused the offered of work, she would have had good cause for doing so. For reasons set forth in the commission's decision, the commission finds that the employe did not in fact have good cause for refusing the employer's offer of work.

cc: 
AIDA Personnel Services

Geoff Hermsen
Personnel Specialists

Le Ann I Norwood

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