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


ROY E PLASKY, Employe

CRESCENT WOOLEN MILLS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98402241MW


On August 20, 1998, the Department of Workforce Development issued an initial determination which held that the employe did not have good cause for failing to return to work for the employer. The employe filed a timely request for hearing on the adverse initial determination, and hearing was held on September 23, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On September 25, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision and, by January 27, 1999 order, the commission remanded the matter for further hearing. That hearing was held on February 23, 1999; the matter is again before the commission and is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about three and a half years as a supervisor for the employer, an operator of a textiles business. His last day of work was January 30, 1998 (week 5). His employment was terminated by the employer on February 24, 1998 (week 9), for extended absence from work as a result of incarceration.

Following his last day, the employer hired a replacement for the employe. In or about week 26 of 1998, the calendar week ending June 27, the employer's operations manager telephoned the employe's residence for the purpose of offering him a position as a stripper, an individual who cleans carding machines. The hours were to be first shift and the wage was to be $10.92 per hour, his previous hours and wage. The individual who answered was heard to tell the employe that the employer was calling. The operations manager heard the employe state that he was not available to talk. The employer followed with a letter to the employe informing him that the employer had an "opening" to offer him at the same pay rate and on the same shift. The employer received no response.

The issue to be decided is whether the employe failed to return to work after being duly recalled and, if so, whether good cause existed for not returning. The commission concludes that the employe did not have good cause for not returning and so reverses the appeal tribunal decision.

Wisconsin Statute § 108.04 (8) provides that a worker who fails to return to accept work or to return to work when duly recalled shall have his benefit eligibility suspended, unless the failure is with good cause. The employe denies receiving the telephone call or the letter and asserts that the employer fabricated the information in order to stop his unemployment insurance. However, he claimed and received nearly four months of benefits, exhausting the greater part of his eligibility before the employer offered him work. He agrees he became aware of the offer on July 28, 1998 (week 31), but did not contact the employer. The employer's witness was credible and its position more plausible than that of the employe. Although the letter to the employe was not specific enough with respect to the job description to constitute an actual offer, the employe precluded the notice of an offer by his actions in refusing to speak to the employer and thereby failed to accept the offer of work. The refusal was of an offer of work and not to return to work after a recall. The employe had been fired and not laid off, and the offer was an offer of another job and not his previous position.

The next issue is whether the refusal was with good cause. There are two grounds for asserting good cause. The first is that the employer fired the employe. There are instances when a worker may not be reasonably expected to return to work with an employer who has fired him. This is not one of those cases. He was discharged because he was in jail and had to be replaced. There is no contention of wrongful action directed at the employer, no allegation of dishonestly in dealing with the employer, and no history of a hostile relationship. There was work available and he was considered to be suited to the position. As to the question of a demotion, the length of his period of unemployment at the time of the offer required him to expand his job search to include reasonable offers of work within his capabilities. This was such an offer and there was no evidence that he would have been placed in an unreasonable position of being supervised by those he had supervised and who might take improper advantage of that relationship. He did not have good cause for refusing the work.

The remaining issue is whether the wages, hours, or other conditions of the work were substantially less favorable to the employe than those prevailing in the locality. Wisconsin Statute § 108.04 (9)(b) prohibits the disqualification of a claimant who refuses work when the wages, hours (including arrangement and number), or other conditions of work are substantially less favorable to the worker than those prevailing in the locality. The work in question is stripping or production machinery cleaning work. The "substantially less favorable" wage cutoff for such work, first shift, is approximately $8.25 per hour. This is substantially below the $10.92 per hour wage the employer was offering the employe. The employe therefore did not have good cause under Wis. Stat. § 108.04 (9) to refuse the offer of work.

The commission therefore finds that, in week 31 of 1998, the employe refused an offer of work from the employer, but not for good cause within the meaning of Wis. Stat. § 108.04 (8). The commission also finds that the employe was paid benefits in the amount of $198 per week for each of weeks 28 through 37 of 1998, totaling $1980, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1). The commission finds, finally, that waiver of benefit recovery is required under Wis. Stat. § 108.22 (8)(c) because the overpayment was the result of departmental error and did not result from employe fault as provided in Wis. Stat. § 108.04 (13)(f).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 31 of 1998, and until four weeks have elapsed since the end of the week in which the failure occurred and he 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. Benefits otherwise chargeable to a contribution employer's account will be charged to the fund's balancing account whenever an employe of that employer fails, without good cause, to accept suitable work offered by that employer. Although there is an overpayment of $1980, as indicated above the employe is not required to repay it.

Dated and mailed March 31, 1999
plaskro.urr : 105 : 3  BR 335.01  SW 800  PC 714.06  PC 717

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission had agreed with the administrative law judge's initial rejection of the computer-generated COED report in this case. As the commission stated in its January 27, 1999 order, it had not been shown that a labor market expert had prepared the report. At that point, however, the administrative law judge was obligated to continue the hearing in order to obtain a proper report, instead of issuing a decision with unsupported findings as to whether the wage in question was "prevailing" under Wis. Stat. § 108.04 (9). It was this failure by the administrative law judge which constituted the department error in this case.


[January 27, 1999 Order, same case]


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