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

EDWARD J WEEKS, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05607627MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (department) issued a decision in this matter. A timely petition for review was filed.

Prior to reaching its decision, the Labor and Industry Review Commission (commission) notified each party that it was taking administrative notice of specific labor market information. Each party was permitted an opportunity to file a written objection to this administrative notice. The employer filed a timely response.

Therefore, the commission considered the employer's petition, and response to the commission's administrative notice as well as the positions of the parties, and reviewed the evidence submitted to the ALJ at the hearing. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own.


DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed March 29, 2006
weeksed . usd : 135 : 8   VL 1005.01 VL 1039.01

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

At the end of the employee's last assignment, the employer offered the employee a job as a forklift truck operator, paying $10.50 per hour, with the shift times of either 6 a.m. to 6 p.m. or 6 p.m. to 6 a.m. Monday through Friday. The employee declined the offer because he did not want to work 12 hours shifts consisting of a 60 hour work week. Pursuant to Wis. Admin. Code § DWD 140.16(2), the commission took administrative notice that 8.95 percent of forklift truck operators in the employee's labor market work full-time jobs consisting of 60 hours per week.

Therefore, the issue for review is whether the employee's quitting constitutes an exception to the disqualification found at Wis. Stat. § 108.04(7)(a). The ALJ held that the employee's refusal to work a job consisting of 60 hours per week provided the employee with good cause attributable for quitting within the meaning of Wis. Stat. § 108.04(7)(b).

The employer argues that the ALJ expanded this statutory exception beyond its intent and therefore his decision should be reversed. After taking administrative notice that only 8.95 percent of this suitable work in the employee's market consists of 60 hours per week, the commission is satisfied that there is sufficient evidence to conclude that most suitable work in the employee's labor market is not comprised of 60 hour work weeks and that the employee did establish good cause attributable to the employer for quitting.

In its response the employer does not object to the percentage the commission took administrative notice of but rather argues that the assignment would not have required 60 hours per week indefinitely. However, when considering the legitimacy of a new assignment the department and the commission must look at what constitutes the actual offer of work. An indication or promise or even the actual conversion of a 12 hour shift to 8 hour (sometime in the future) does not change the specific terms and conditions of the offer when presented to the employee. It has been consistently held 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. P. A. Staffing Ser. Inc., UI Hearing No. 99601291MW (LIRC June 9, 1999). In this case, the new assignment at the time it was made consisted of 60 hours per week, even though at some point in the near future it would be less hours per week.

The employer also requests that if the commission is going to take administrative notice of 60 hours per week that it should look at other overtime jobs that offer between 55 to 45 hours per week. The commission did as the employer requested and only 10 percent of the employee's suitable work was comprised of 45 hours or more per week.

Finally, the employer argues that the employee previously worked a 12-hour shift in another assignment. However, the hearing record is insufficient to determine whether the employee had worked 12-hour shifts consisting of 60 hours per week. The employer argues that the employee's only reason for refusing the offer is personal and that should not provide him with good cause attributable to the employer for quitting. However since the majority of suitable work in the employee's labor market consists of 40 hours per week or less the employee established his quitting within the meaning of Wis. Stat § 108.04(7)(b).



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uploaded 2006/04/03