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

GAIL M KERN, Employee

ILLINOIS TOOL WORKS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03004692BD


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 in the shipping and receiving department for the employer at its plant in Hustisford, Wisconsin. Her job included operating a forklift for 25 to 30 percent of her time. She was laid off in early March of 2003.

On May 23, 2003 (week 21), the human resource manager offered the employee a position as a material handler at the plant in Watertown, Wisconsin. The manager stated that she was uncertain whether the employee was qualified for the job and that the employee's recall rights would not be affected if the employee did not accept the position. The employee had safety concerns regarding some of the duties associated with the position. On May 27, 2003 (week 22), the employee decided not to accept the position.

The issue to be decided is whether the employee failed to accept a bona fide offer of suitable work.

The commission has previously noted that in order for an offer of work to be considered bona fide, it should be of such definite character that nothing more than a simple acceptance is necessary to form a contract of hire. K & H Construction, Inc., v. Ind. Comm. & Severson, Case No. 124-118 (Dane Co. Cir. Ct., March 8, 1968). A bona fide offer is one that is complete and requires no action on the part of the employee to complete it. Webber v. PA Staffing Ser. Inc., UI Hearing No. 99601291MW (LIRC June 9, 1999) (an offer which did not include the location of the job but which required the employee to contact the employer to learn it not a bona fide offer because not complete); and Jordan v. Personnel Alternatives, Inc., UI Hearing No. 93610008MW (LIRC Sept. 2, 1994) (offer which stated the duties of the position, the wage rate, the starting date, and the hours of work is a complete and bona fide offer). The employer never informed the employee of the wage rate of the position. The employee had not previously worked in such position or at such location. There was nothing in the record to indicate the employee knew the wage rate of the position. It was the employer's obligation to make clear such condition of employment. The commission finds that the employee did not receive a bona fide offer of work.

The commission therefore finds that in week 22 of 2003, the employee did not fail to accept an offer of suitable work within the meaning of Wis. Stat. § 108.04(8)(a).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2003, if she is otherwise qualified.

Dated and mailed March 24, 2004
kernga . urr : 132 : 3   SW 845.03

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility. The commission has not reversed the ALJ's decision based on credibility. There is no support in the record for the finding that the employee assumed she would be paid what she had been paid in the past. Indeed the employee testified she had no idea whether she would be paid less money than she was paid in her prior position.

 

cc: Illinois Tool Works (Watertown, Wisconsin)


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