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


LAURA L STEGEN, Employe

PANEX CORP, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96005004MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 worked about nine and one-half years as an inspector for the employer, a manufacturer of speaker cabinets. In the fall of 1995, the employe returned to school, attending a technical college, to become an RN. The employe's schooling is not considered approved training. When she decided to go back to school, she spoke with the employer regarding her schedule and it was agreed that she could work when she was able. The employe arranged her own schedule.

The employer's normal hours are from 6:00 a.m. to 2:30 p.m., Monday through Friday. The employe's schedule is working 6:00 a.m. to noon, Monday, Wednesday, Friday, and 6:00 a.m. to 10:00 a.m., Tuesday and Thursday. In the fall of 1996, the employe attended school on Monday nights from 6:00 to 10:00 p.m., Tuesday and Thursday from 2:30 p.m. to 4:30 p.m., and Saturday from 8:00 a.m. to 3:30 p.m. The employe is able to change her Tuesday and Thursday class to Monday night and her Monday night class to Tuesday night. As of the date of hearing she had not done so. In the employe's labor market 80 percent of full-time work is performed on first shift.

The employe filed a claim for benefits on September 25 after being laid off after performing six hours of work on September 23. The employe was again laid off for part of week 40 of 1996 reporting partial wages in that week. The employe was then laid off in week 41 of 1996.

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

Section 108.04 (2)(a) Stats., provides that a claimant is not eligible for unemployment benefits unless she is able to work and available for work. Section ILHR 128.01 (2)(a), Wis. Admin. Code implements the statute and provides that a claimant will not be deemed available for work if she, without good cause, restricts herself to less than 50 percent of the full-time opportunities for suitable work in her labor market.

Labor market testimony introduced at the hearing established that based on the employe's school attendance, in particular her Tuesday and Thursday school attendance, the employe was available for only 20 percent of suitable full-time jobs in her labor market. While the employe maintained that she could arrange to take her day class at night, she had not, at the time of the hearing made such arrangements. Further, the employe's hours of work while attending school have not been limited simply by her class attendance. The employe attends day time classes on Tuesday and Thursday beginning at 2:30 p.m. yet works only until 10:00 a.m. on those days. The employe has no classes on Monday, Wednesday, or Friday, yet works only until noon on those days. The employe's part-time work schedule is by choice and not solely due to a conflict with her class schedule. Based on these facts the commission determines that the employe is not available for the requisite percentage of full-time work and is not genuinely interested in working full time.

Since the employe was not able to work and available for work as of week 41 of 1996, unemployment benefits she has received have been overpaid. The overpayment results because the commission has reached a different legal conclusion than that reached by the administrative law judge and is not due to department error.

The commission therefore finds that as of week 41 of 1996, the employe was not able to work and available for suitable work, within the meaning of sec. 108.04 (2)(a), Stats., and Chapter ILHR 128, Wis. Admin. Code.

The commission further finds that the employe was paid benefits in the amount of $1,879 for weeks 41 through 51 of 1996, for which she was not eligible and to which she was not entitled, within the meaning of sec. 108.03 (1), Stats., and pursuant to sec. 108.22 (8)(a), Stats., she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under sec. 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in sec. 108.04 (13)(f), Stats., the overpayment was not the result of a department error. See sec. 108.22 (8)(c)2., Stats.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 41 of 1996, and until she is again able to work and available for work. She is required to repay the sum of $1,879 to the Unemployment Reserve Fund.

Dated and mailed February 6, 1997
stegela.urr : 132 : 5   AA 205

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. As indicated in its decision, the commission has reached a different legal conclusion from the facts adduced at the hearing.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment 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. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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