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

ROBERT T PINKOS, Employee

BURGESS CAR & TRUCK SERVICE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03611683MW


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 eight months as a mechanic, earning $18.00 an hour, for the employer, an automotive repair business. His last day of work was May 1, 2003 (week 18) when he voluntarily terminated his employment with the employer.

On October 31, 2003 (week 44), the employee received a letter from the employer offering him the ability to return to work as a mechanic. The work was to start on November 5, 2003 (week 45). The employee did not respond to the offer of work and did not report to work. Department records reflect that, although the employee initiated a claim for unemployment insurance benefits after the quitting, he did not receive any benefits as of week 45 of 2003.

The employee refused the offer of work with the employer based upon his prior employment experience. In particular, the owner's son-in-law called the employee disrespectful names on two occasions. Also, after quitting, the employee filed a wage claim with the Wisconsin Equal Rights Division for additional wages that the employer did not pay.

Wis. Stat. § 108.04(8)(a) provides that a worker who fails without good cause to accept suitable work when offered is ineligible to receive unemployment insurance benefits until four weeks have elapsed since the end of the week in which the failure occurs and the employee earns wages in subsequent covered employment equaling four times his or her weekly benefit rate.

The issue to be decided is whether the employee's failure to accept the offer of work beginning in week 45 of 2003 was with good cause.

The employee assumed that the offered work environment would be unsavory, given the employer's challenges to his eligibility for unemployment insurance benefits, the past work history and the dispute regarding the wage claim. In determining whether a refusal is with good cause, the soundness and reasonableness of the refusal must be considered. Patterson v. Regency Janitorial Service Inc., UI Dec. Hearing No. 01607619MW (LIRC January 17, 2002).

The employer had the right to appeal the employee's eligibility for unemployment insurance benefits and to offer him work since it had work available. The fact that the owner's son-in-law called the employee disrespectful names on two occasions during the prior employment does not mean that that behavior would have continued in the new employment relationship, especially since the employer's owner was now aware of the matter. More importantly, had the employee wished, he could have discussed this concern, as well his concern regarding the payment of wages, with the owner when he received the offer letter instead of just assuming the problems would remain. Further, there is no evidence that the offered wages, hours or other conditions of the employment were substantially less favorable than similar types of work in the labor market. Under these circumstances, the commission finds that the employee's refusal of the offer of work without any attempts to discuss his concerns and after six months of unemployment was not reasonable.

The commission therefore finds that in week 45 of 2003 the employee failed to accept a suitable offer of work without good cause, within the meaning of Wis. Stat. § 108.04(8)(a).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 45 of 2003 and until four weeks have elapsed since the end of the week in which the failure occurred and the employee has earned wages in covered employment performed after the week of the failure equaling at least four times his weekly benefit rate which would have been paid had the failure not occurred.

Dated and mailed July 28, 2004
pinkoro . urr : 150 : 1   SW 800

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not the result of a differing assessment of witness credibility but based upon a differing legal conclusion.


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