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

RICHARD A VANSELOW, Employee

THE HOWARD G HINZ CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05605617MW


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 over six months, most recently as a screw machine operator for the employer, a machining company. His last day of work was November 29, 2004 (week 49), when he was laid off.

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

The employee began an EEOC claim. The employer, on March 18, 2005, (week 12) offered the employee his prior position. The employee was skeptical of the employer's motives. The work offered was on the second shift as a screw machine operator. The employee had been earning $13 per hour. The employee did not want to work second shift because he had a young daughter and his wife worked second shift. The employee wanted to be home with his daughter while his wife was working.

Wisconsin Stat. § 108.04(9)(b) states that benefits shall not be denied to any otherwise eligible individual for refusing to accept new work if the wages, hours, including arrangement and number, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. The Department of Workforce Development has quantified this standard with what is known as a "quartile" system. Essentially, if the condition in question prevails in less than 25% of the jobs in the particular job category at issue (along with similar work as defined in the administrative code), the work is substantially less favorable than prevailing work in the locality, under Wis. Stat. § 108.04(9). These so-called labor standards "are minimum standards" and "apply to all denials of benefits for refusal of offers of or referrals to new work regardless of [the claimant's] reasons for refusing the job." Unemployment Compensation Program Letter Note. 130, p. 2 (January 6, 1947). This is because the purpose of the standards is not primarily directed at particular individuals, but rather is "to prevent the unemployment compensation system from exerting downward pressure on existing labor standards" (emphasis added). Id. at 3. In the present case, second shift work constitutes less than 15 percent of the full-time labor market for similar jobs. As such, it is "substantially less favorable" under Wis. Stat. § 108.04(9).

The commission therefore finds that, in week 12 of 2005, the employee did not fail to accept an offer of suitable work, within the meaning of Wis. Stat. §§ 108.04(8)(a) and 108.04(9)(b).

DECISION

The decision of the administrative law judge is amended as to the week of issue and as amended is reversed. Accordingly, the employee is eligible for benefits beginning in week 12 of 2005, if otherwise qualified. The employee is not required to repay the amount of $21 to the unemployment reserve fund.

Dated and mailed March 7, 2006
vanseri . urr : 145 : 8  SW 844

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission reversed the ALJ because it reached a different legal conclusion when applying the law to the evidence in the record, including the evidence adduced at the remand hearing which was not available to the ALJ when he made his decision.


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uploaded 2006/03/13