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


SUSAN A WILCOX, Employe

FLEX STAFF TEMPORARY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97402212AP


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a temporary staffing service, for about eight months. During most or all of this time the employe performed cleaning services on a part-time basis for one of the employer's clients, a company called Professional Plating. As of the week at issue, week 31 of 1997, the employe was averaging between 10 and 20 hours a week in this assignment.

On or about July 28, 1997, the employer asked the employe if she could work 40 hours a week for Professional Plating. The employe was told that the employer recognized she was working slowly due to a neck and shoulder condition and that it was taking her longer to get things done. The employer notified the employe that its client would permit her up to 40 hours to perform her duties if that was necessary. However, the employe felt she could complete her cleaning duties for Professional Plating while working part-time. Consequently, she did not increase her hours to 40, but worked only 14 hours during week 31 of 1997.

The issue to be decided is whether the employe was with due notice called on by her current employing unit to report for work actually available during week 31 of 1997 and, if so, whether she was unable to perform or unavailable for some or all of that work.

Wisconsin Statute § 108.04 (1)(a) provides, in relevant part:

"An employe's eligibility for benefits shall be reduced for any week in which the employe is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the department shall treat the amount that the employe would have earned as wages for that week in such available work as wages earned by the employe and shall apply the method specific in s. 108.05(3)(a) to compute the benefits payable to the employe. The department shall estimate wages that an employe would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employe."

Although at the hearing the employer contended it offered the employe additional work for its client which she failed to perform, the evidence suggests that the employe was not offered any additional work, but was merely given permission to take extra time to complete her regularly assigned work. The employe determined it unnecessary to increase her hours for the employer's client because she felt she could complete the same work in a shorter amount of time. She did not, however, turn down any actual work that was available to her.

The commission, therefore, finds that in week 31 of 1997 the employe was not with due notice called upon by her current employing unit to perform work actually available, within the meaning of Wis. Stat. § 108.04 (1)(a).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe's benefits for week 31 of 1997 shall not be reduced. She is not required to repay the sum of $125 to the Unemployment Reserve Fund.

Dated and mailed: January 6, 1998
wilcox.rev : 164 : 1   AA 150

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

James A. Rutkowski, Commissioner

NOTE: Although the commission held a credibility conference with the administrative law judge, the commission's reversal of the appeal tribunal decision is not based upon any differing assessment of witness credibility. Rather, the commission arrives at a different conclusion when applying the law to basically the same set of facts as that found by the appeal tribunal.


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