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


SANDRA A BURLOCK, Employe

CORNWELL STAFFING SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97602393MW


On March 15, 1997, the Department of Workforce Development issued an initial determination which held that the employe did not have good cause for failing to accept an offer of work. The employe timely requested a hearing on the adverse initial determination, and hearing was held on May 13, 1997 and June 10, 1997 in Milwaukee, Wisconsin before a department administrative law judge. On June 20, 1997, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe timely petitioned for commission review of this and another, 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 follow:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about two years as a production worker for the employer, an operator of a staffing business. Her last day of work was November 7, 1996 (week 45), when she was dismissed. The issue is whether the employe failed, without good cause, to accept suitable work. The commission concludes that she did not, but that she is not able to perform the requisite percentage of suitable work in her labor market area. The commission therefore reverses the appeal tribunal decision in part.

In week 8 of 1997, the calendar week ending February 22, the employer offered the employe a job as a housekeeper with a client that engaged in the business of staffing medical facilities such as hospitals. The job paid an hourly wage of $5.75 and the work was to be performed during the hours of first shift. The wage range for similar work in the locality is $4.75 per hour to $16.00 per hour, with 75 percent of the workers earning at least $5.50 per hour. Of those similarly employed, 39 percent work first shift, 48 percent work second shift, and 9 percent work third shift. The remainder work rotating and other shifts. She refused the work because she has suffered from asthma and arthritis, and has a 5-pound lifting restriction, a restriction which precludes her from doing the work offered. Given her restrictions, and considering the work she is otherwise reasonably suited to perform, she is available for approximately 10 percent of the suitable jobs in the locality.

Wis. Stat. § 108.04 (8) provides that a worker who refuses suitable work without good cause shall have her benefit eligibility suspended. The work offered was work the employe was incapable of performing, given her restrictions. She is not required to accept work she is physically unable to do in order to maintain benefit entitlement. She had good cause for refusing that work. The issue remains, though, whether the employe is generally available for work.

Wis. Stat. § 108.04 (8)(e) provides that benefits may not be paid where good cause is found under sub. (8) if the worker is not available for work. Availability is defined in Chapter ILHR 128 of the Wisconsin Administrative Code as requiring a worker with a physical limitation to be able to perform at least 15 percent of the suitable jobs. While there is some lack of evidence relating to certain job classifications, such as cashiers, the record made is sufficiently probative as to amount to substantial evidence from which reasonable inferences may be drawn. The labor market testimony was that she was unable to perform 15 percent of the suitable jobs. The testimony established that she was suited to jobs in the sales, clerical, service, and operator/fabricator fields. A breakdown of that market reflects that approximately 18 percent are sales, 12 percent are clerical, 35 percent are service, and 35 percent are operator positions. Given her restrictions, she can perform at most 5 percent of the sales jobs, 59 percent of the clerical jobs, 5 percent of the service jobs, and 2 percent of the operator jobs. Applying the percent of jobs she can do against the jobs she is qualified to do by training and experience, she is able to perform approximately 10.5 percent of the suitable jobs in the locality.

The commission therefore finds that, in week 8 of 1997, the employe failed, with good cause, to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04 (8)(a), but that the employe was not able to work or available for work, within the meaning of Wis. Stat. § 108.04 (8)(e).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for unemployment benefits beginning in week 8 of 1997, and until the employe is again able to work and available for suitable work, within the meaning of Wis. Stat. § 108.04 (2) and Wis. Admin. Code § DWD 128.01 (2).

Dated and mailed: January 2, 1998
burlosa.urr : 105 : 1 SW 800  SW 844

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission agrees with the entirety of the appeal tribunal decision, save the administrative law judge's conclusion regarding the applicability of the so-called labor standards provision, Wis. Stat. § 108.04 (9). That statute precludes denial of benefits where the wages or other conditions of an offer of work are substantially less favorable to the claimant than the wages or other conditions for "prevailing" work in the locality. In this case, the administrative law judge reasoned that, since the majority of the work here in question was performed on second shift, the offer of first shift work was "non-prevailing." This would be true if less than 25 percent of the work in question was performed on first shift. Since 39 percent of the work is performed on first shift, though, first shift work is not considered non-prevailing under Wis. Stat. § 108.04 (9). The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision; the commission's difference with the administrative law judge is not one of credibility. The commission does not reach the issue of departmental error; department records indicate there is no overpayment as a result of the commission's reversal of the appeal tribunal decision in this case.

cc:
ATTORNEY JEFFERY R MYER
LEGAL ACTION OF WISCONSIN INC


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