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

DALE M DILGE, Employee

WAUKESHA BEARINGS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03005031WU


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 24 years as a lathe operator for the employer, a machine shop, before being laid off on December 20, 2002, due to lack of work.

The employer is located in Antigo, Wisconsin, where the employee resides.

The employee was out of work until May 19, 2003, when he began similar work as a machine operator for Mod-Tech Industries in Shawano. This job required the employee to drive 110 miles round trip each day. The employee's last day of work for Mod-Tech was May 30, 2003, and he quit this employment on June 2, 2003 (week 23).

The issue is whether the employee was able and available for suitable work in his labor market area as of week 23 of 2003.

The employee filed a claim for benefits after his separation from Mod-Tech. The department investigator wrote as a part of the claimant statement (exhibit #1) that the employee represented to her during his interview that, "I would travel up to 3 miles to get to work."

In his letter appealing the department's determination denying benefits (exhibit #2), the employee stated that he was willing to travel 10-12 miles to work.

At hearing, the employee testified that he did not tell the department investigator that he would travel only 3 miles to get to work. He recalled instead that she had asked him where the machine shops in his area were located, and he told her there were machine shops in Antigo and that Antigo was 3 miles in length. He testified that, at the time, he was willing to travel 10-12 miles to get to work.

The expert labor market evidence of record consists of four COED (Conditions of Employment Database) reports (exhibit #4). Two of these reports indicate that the distance workers customarily travel for similar occupations is 10.87 miles, one indicates 10 miles, and one indicates 13.48 miles.

There is no evidence in the record, other than the disputed hearsay account of what the employee stated to the investigator, which shows that the employee was limiting his work search or otherwise limiting his availability for work to a 3-mile radius from his home. The commission concludes as a result that the evidence of record establishes that, during the time period relevant here, the employee was available to drive 10-12 miles to work, which approximates the distance stated on three of the four labor market reports.

The record supports no other basis for disqualifying the employee. He quit non-prevailing work at Mod-Tech within the first 10 weeks of beginning his employment there, within the meaning of Wis. Stat. § 108.04(7)(e); and, although he suffered from an eye condition, the medical evidence of record shows that that this condition did not restrict his ability to work as a machine operator or otherwise.

The commission therefore finds that, as of week 23 of 2003, the employee was able to work and available for work within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2003, if otherwise qualified.

Dated and mailed March 23, 2004
dilgeda . urr : 115 : 2  PC 714.07 

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established. Specifically, the commission reached a different factual finding in regard to the distance which the employee was willing to travel for work based not upon a different credibility assessment, but instead upon its conclusion that the claimant statement upon which the administrative law judge apparently relied was unsubstantiated hearsay which the employee disputed, and that the only competent evidence in the record in this regard as a result was the employee's hearing testimony to the effect that he did not tell the investigator he would only work within the 3-miles radius and that he was available at the time for work within a 10-12 mile radius of his home in Antigo.

 

cc: Attorney James B. Connell


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