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

BRIAN F BURGERT, Employee

BUTTNAM & BINNER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401409AP


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 has worked as a meat cutter for about 26 years for the employer, a meat market. He customarily works Monday through Friday from 5:30 a.m. to 11:00 a.m. for $11 per hour. He has his own sports card and sports memorabilia sales business that he operates from noon to 5:00 p.m. during weekdays. The employer was temporarily closed in May of 2006 because of the owner's hip replacement surgeries. The employee expects to be recalled in the fall. He opened a claim for unemployment benefits in the calendar week beginning May 7, 2006 (week 19).

The issue to be decided is whether the employee is able to work and available for work in the employee's labor market as of week 19 of 2006.

Wis. Stat. § 108.04(2)(a) provides that in order to be eligible for unemployment insurance benefits in any week of total unemployment, a worker must be able to and available for work.

Wisconsin Admin. Code ch. DWD 128 implements the statute. Wisconsin Admin. Code § DWD 128.01(1) provides that a claimant is eligible for unemployment benefits for any week of total unemployment only if the claimant is able to work and available for suitable work. Wisconsin Admin. Code § DWD 128.01(2) provides that a claimant is not considered to be able to work or available for work in any given week if:

(a) The claimant, without good cause, restricts his or her availability for work to less than 50 percent of the full-time opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;

(b) The claimant's physical or psychological condition or personal circumstances over which the claimant has no control limit the claimant to less than 15 percent of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;

The employee argued that he was able to work and available for work as of the week of issue. The employee was willing to close his business to accept full-time dayshift work if he was offered work paying at least $11.00 per hour. The employee would have been able to refuse work paying less than that amount during his first six weeks of unemployment, because he was still in his canvassing period.

Wisconsin Statutes § 108.04(8)(d] states as follows, as relevant here:

An employee shall have good cause...regardless of the reason articulated by the employee for the failure [to accept suitable work when offered], if the department determines that the failure involved work at a lower grade of skill or significantly lower rate of pay than applied to the employee on one or more recent jobs, and that the employee had not yet had a reasonable opportunity, in view of labor market conditions and the employee's degree of skill, but not to exceed 6 weeks after the employee became unemployed, to seek a new job substantially in line with the employee's prior job skill and rate of pay.

The labor market analyst presented testimony that if the employee was available for work from 6:00 p.m. until 11:00 a.m. he would be available for 33 percent of full-time suitable work. However, since the employee was willing to accept any work if it paid at least $11.00 per hour, the commission considers that the employee has a wage, not an hours, restriction. The labor market analyst further opined that if after the employee's first six weeks of unemployment he still required $11.00 per hour minimum he would be available for 37 percent of full-time suitable work. However, the opinion considered other lower skill and lower paying positions that are not suitable to the employee in his first six weeks of unemployment. During the employee's canvassing period, the employee should not be denied benefits for refusing to seek work he would have had good cause to refuse. See Jaeger v. La Crosse Mosaic Tile Co. Inc., UI Dec. 03000870LX, (LIRC December 18, 2003). The canvassing period does allow, after the first six weeks, for a sliding scale so that workers are not always obliged to accept any work. However, in this case, the employee wanted to earn what he earned for the employer and was not willing to accept a lower wage. As such, any consideration of a sliding scale is inapplicable in this case.

The commission therefore finds that as of week 19 of 2006, the employee was able to work and available for work, within the meaning of Wis. Stat. § 108.04(2)(a) and chapter DWD 128 of the Wisconsin Administrative Code. However, as of week 25 of 2006, the employee was not able to work or available for work, within the meaning of Wis. Stat. § 108.04(2)(a) and chapter DWD 128 of the Wisconsin Administrative Code.

DECISION

The decision of the administrative law judge is modified and as modified is affirmed, in part and reversed in part. Accordingly, the employee is eligible for unemployment benefits from week 19 through 24 of 2006. As of week 25 of 2006, the employee is ineligible for benefits until he is able to work and available for suitable work.

Dated and mailed August 31, 2006
burgebr . urr : 145 : 1  AA 210

/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 did not modify the ALJ's decision based on a different impression of witness credibility and demeanor. Rather, the commission reaches a different legal conclusion when applying the law to the facts found by the ALJ.


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