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


VICTORIA S TEGGE, Employe

REEDSBURG COUNTRY CLUB, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95004980BO


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 the applicable law, records and evidence in this case, the commission makes the following : 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe has worked for approximately three years as a waitress for the employer, a restaurant and golf course. During October of 1995 the employe's hours were reduced from 40 plus hours to between 17 to 20 hours per week. At the time the employe initiated a claim for benefits in week 42 of 1995, and continuing to the date of the hearing, the employe remained partially employed by her employer.

While the employe worked for the employer, and continuing to the hearing date, the employe attended a technical school on a part-time basis during first-shift hours. The employe's school attendance is generally during the morning hours from between 7 : 30 a.m. to 2 : 00 p.m. Mondays, Tuesdays, and Fridays. The employe is working towards a two year degree which would transfer to a four year program. The employe's cost of school attendance amounts to $350.00. The employe was in her first semester of school at the time of the hearing. The employe would quit school to take another job if she had to. The employe expects to be working full-time for the employer again beginning on March 15, 1996.

A labor market report introduced into the record indicates that, based on the employe's school attendance, in her labor market she is available for only 23 percent of full-time suitable work.

The issue to be decided is whether the employe is able to work and available for work in her labor market.

The administrative law judge denied benefits based on section 108.04 (2)(a), Stats. However, that statutory section applies only to a claimant who is totally unemployed i.e., earns no wages in a week. Likewise, secs. ILHR 128.01 (1) and (2)(a), Wis. Admin. Code provides that a totally unemployed claimant who has a controllable restriction must be available for work in at least 50 percent of the full-time opportunities for suitable work in the claimant's labor market. Thus, sec. 108.04 (2)(a), Stats., denies benefits to a totally unemployed claimant who is not able to work and available for work in the requisite percentage of suitable jobs as set by department rules. Section 108.04 (d) provides that a claimant who earns wages for a week, i.e. is partially unemployed, may be required, by rule of the department, to comply with the able and available requirements set forth above. The applicable department rule, contained in sec. ILHR 128.01 (5), Wis. Admin. Code, states that "the department may require a claimant who is partially unemployed to comply with the requirements of this chapter if there is some definite indication that the claimant is not genuinely interested in working full-time."

The employe is and has been working part-time for the employer. She is thus partially unemployed. Therefore, she must be available for 50 percent of the opportunities for full-time suitable work only if there is some "definite indication" that she is not genuinely interested in working full-time. There is no evidence in this case that the employe is not genuinely interested in working full-time.

First, the employe has been working full-time for the employer when full-time hours are available, during the employer's peak season. The employe indicated that she would forego schooling to accept full-time work. The employe's investment for the semester is only $350. In addition, the employe attends only part time which makes it easier for her to arrange her class schedule now, and in the future, so that it would not interfere with her ability to work full time on first shift. Neither the employe's past actions, nor her present actions, indicate an unwillingness to work full time.

The commission therefore finds that as of week 42 of 1995 the employe was able to work and available for work in her labor market within the meaning of sec. 108.04 (2), Stats., and Chapter ILHR 128, Wis. Admin. Code.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 42 of 1995, if she is otherwise qualified.

Dated and mailed :  February 20, 1996
teggevi.urr : 132 : 1  AA 205

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that credibility was not an issue in this case. The commission's reversal is not based on a differing impression of witness credibility or demeanor but upon reaching a different legal conclusion when applying the law to the facts of the case.

cc :  ATTORNEY MARK SODERBLOOM
QUALE HARTMANN BOHL REYNOLDS & PULSFUS SC


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