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


REBECCA A HENNING WESCHER, Employe

PINEHURST INN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98401943SH


On July 23, 1998, the Department of Workforce Development issued an initial determination which held that the employe was, with due notice, called upon by her current employer to perform work actually available but was unavailable for such work. The employe filed a timely request for hearing, and hearing was held on August 24, 1998 in Sheboygan, Wisconsin before a department administrative law judge. On August 28, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now 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 as a desk clerk for the employer, a motel and restaurant, beginning in February of 1997. Her last day of work was July 20, 1998. The issue in this case is whether the employe's unemployment insurance eligibility for week 27 of 1998 is affected by her refusal of three third-shift assignments from the employer. The commission concludes that it is not, and so reverses the appeal tribunal decision.

The employe initially worked full time for the employer but, about a month after she started, indicated that she could not work full time. Accordingly, the employer reduced her hours to one shift per week, first shifts on Mondays. The employe occasionally would fill in for other workers, including on second shift, but she generally could not work third shift because of her children and, indeed, in the entirety of the employe's employment she worked third shift on only one occasion, sometime early in her employment. The employe discussed this limitation with the employer, when the employer interviewed the employe just before the employer hired her.

Given this understanding between the employe and employer, and the employer's actual practice of not assigning third-shift work to the employe, the commission concludes that the employe's refusal of the shifts is properly analyzed under the "good cause for refusal of work" statute, 108.04(8)(a). Essentially, under the statute an employe may fail to accept work if he or she has good cause to do so, without suffering unemployment insurance disqualification for reduction. The employe's third-shift child care responsibilities constitute personal good cause for the employe's refusal of the third-shift assignments, within the meaning of Wis. Stat. § 108.04(8)(a), and the commission so finds.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe's unemployment insurance entitlement for week 27 of 1998 is not reduced by including in the computation of benefits payable the $186.00 the employe would have earned had the employe worked the three third-shift assignments in question.

Dated and mailed: November 24, 1998
hennire.urr : 105 : 1  AA 110

/s/ David B. Falstad, Chairman

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 case. Such conferral is necessary when the commission is considering rejecting factual findings made by the administrative law judge and credibility was a factor in the administrative law judge's factfinding. Such is not the case here. The commission has accepted the facts found by the administrative law judge. For the reasons stated in the decision, though, the commission believes the case is properly analyzed under Wis. Stat. § 108.04(8)(a).


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