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

CARMILLE R ELLIOTT, Employee

BADGERLAND CHEMICAL & SUPPLY CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09002490MD

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

In the last sentence of the second paragraph of the FINDINGS OF FACT and CONCULSIONS OF LAW section, the word "thirteen" is changed to "twelve."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2009, and until the employee is again available for suitable work.

Dated and mailed November 5, 2009
ellioca . umd : 115 : 6   AA 265

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked approximately 21 years as a sales representative for the employer, a janitorial supply business. She performed this work during first shift hours on weekdays. Her last day of work was February 17, 2009, and she initiated a claim for benefits in week 9 of 2009, i.e., the week ending February 28.

On March 1, 2009, the employee established her own janitorial supply business. As of the date of hearing (June 3, 2009), she had at least 12 customers.

The employee testified as follows:

* She does deliveries for her business 2 weekdays each week from 2-5 p.m.
* She picks up supplies from 3-4 distributors on weekdays, generally earlier in the day than she makes deliveries.
* She spends time soliciting business from the employer's customers, and cold-calling twice each day or twice every other day. Based upon her testimony that her pickups/deliveries were performed on weekdays during first shift hours because the businesses were not open on weekends, it is reasonable to infer that her solicitation of business occurred on weekdays during first shift hours.

This represents a significant amount of time during first shift hours on weekdays.

Wisconsin Statutes § 108.04 states as follows, as relevant here:

(2) General qualifying requirements.

(a) Except as provided in par. (b) and as otherwise expressly provided, a claimant is eligible for benefits as to any given week for which he or she earns no wages only if:

1. The individual is able to work and available for work during that week;...

Wisconsin Administrative Code § DWD 128.01 states as follows, as relevant here:

DWD 128.01 Able to work and available for work.

(1) APPLICABILITY. Under s. 108.04 (2), Stats., a claimant shall be eligible for unemployment benefits for any week of total unemployment only if the claimant is able to perform suitable work and available for suitable work. ...

 (4) AVAILABLE FOR WORK.

(a) Withdrawal from labor market. Available for work means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the claimant's labor market area. During any week, a claimant is not available for suitable work if he or she has withdrawn from the labor market due to restrictions on his or her availability for work. In determining whether a claimant has withdrawn from the labor market, the department shall consider one or more of the following factors:

...2. `Shift and time restrictions.' A claimant is considered to have withdrawn from the labor market if he or she is not available for full-time suitable work during the standard hours in which work is performed in the occupations in which the claimant usually works or has prior training or experience. In determining the standard hours in which work is performed in the occupations, the department shall include the hours and the shift that the claimant worked in an occupation in one or more previous jobs since the start of the claimant's base period....
DWD 128.01(4)(a)1......

The significant amount of time the employee devotes to her business during the standard hours for her occupation establishes that she has withdrawn from the labor market and is not available for full-time suitable work within the meaning of Wis. Stat. § 108.04(2)(a)1. and Wis. Adm. Code § DWD 128.01(4)(a)2.

The employee argues in her petition that the ALJ never asked her how many hours she devoted to her business each week. Although that particular question was not asked, there is sufficient evidence, as discussed above, to permit a finding as to the approximate range of such hours.

The employee asserts in her petition that, contrary to the ALJ's finding that she has 13 clients, she has only 10. However, the employee listed 12 clients in her testimony (see p. 4 of synopsis), and the ALJ's decision has been modified to reflect this.

The employee contends that, contrary to the ALJ's finding that she was "making telephone calls outside the immediate area to prospective customers within a 90 mile radius," she had "not traveled within a 90 mile radius to call on customers and have no intention of doing so." However, the employee testified that, "I sell to a 60-90 mile radius."

Finally, the employee asserts that she has always worked "at least two jobs or more" in arguing that she was available for work despite the time she devotes to her new business. However, the employee testified that, as of February 17, when the separation occurred, she was only working for the employer, so this argument is not persuasive.

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