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

KYLHA J MOORE, Employee

UNITED PARCEL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03601859RC


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

The employee worked for approximately two months, as a package handler, for the employer, a package delivery service. Department records show that she was laid off on May 31, 2002, and that the employment relationship ended on or about June 26, 2002 (week 26).

The issue to be decided is whether the employee failed to accept an offer of work, and if so, whether good cause existed for failing to accept that offer.

The employee worked second shift for the employer. This was pursuant to the request she set forth in her application for employment. On or about June 26, 2002, she was to return from a layoff to her previous second-shift work. She did not return to work at that time. She never again performed wage-earning services for the employer. Departmental records show that approximately 21 percent of similar work performed on a part-time basis is on the second shift. About 40 percent of the work is performed on first shift, and about 29.5 percent is performed on a rotating shift. The rest of the similar part-time work is performed on third shift. The Department of Labor has stated that benefits cannot be denied when a worker refuses an offer of work that is on a non-prevailing shift unless that worker expresses a preference for the non-prevailing shift. See July 19, 2000 Program Letter No. 41-98. In this case, the employee expressed a preference for second-shift work. She then accepted the second-shift work offered by the employer. The employee did not respond to the employer's second offer of second-shift work and as such, did not inform the employer that her preference had changed. There is nothing in the record to indicate that her preference had changed. The employee did not appear at the hearing to explain why she failed to accept the offered employment. As such, the commission cannot conclude that the employee had good cause for failing to accept the offer of work.

The commission therefore finds that in week 26 of 2002, the employee failed, without good cause, to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a), and that the wages, hours (including arrangement and number), or other conditions of that work were not substantially less favorable to the employee than those prevailing for similar work in the labor market, within the meaning of Wis. Stat. § 108.04(9)(b).

The commission further finds that the employee was paid benefits in the amount of $50.00 per week for each of weeks 26 through 31 and 33 through 48 of 2002, amounting to a total of $1,100.00, for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), 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 Wis. Stat. § 108.22 (8)(c), because although the over payment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 26 of 2002, and until four weeks have elapsed since the end of the week of the failure and the employee has earned wages in covered employment performed after the week of the failure equaling at least four times the employee's weekly benefit rate which would have been paid had the failure not occurred. The employee is required to repay the sum of $1,100.00 to the Unemployment Reserve Fund. The employee requalified as of week 3 of 2003.

Dated and mailed November 6, 2003
mooreky . urr : 145 : 1     SW 855

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission did not reverse the ALJ's decision as the result of any differing assessment of witness credibility or demeanor. Rather, the commission reached a different legal conclusion when applying the law to the facts found by the ALJ

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.


cc: United Parcel Service, Inc. (Elm Grove, Wisconsin)


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uploaded 2003/11/10