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


PHILIP D WHITE, Employe

MEYER REALTY & MANAGEMENT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004381MD


On October 30, 1998, 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 filed a timely request for hearing on the adverse determination, and hearing was held on November 30, 1998 in Madison, Wisconsin before a department administrative law judge. On December 3, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition 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, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On October 13, 1998, a new employer telephoned the employe for the purpose of offering the employe work of a day and a half's duration. The first issue is whether a perfected offer of work occurred; if so, a second issue is whether the employe had good cause for refusing it pursuant to Wis. Stat. § 108.04(8)(a). It is not clear that the employe ever flatly refused the offer of work; assuming his actions constituted a refusal of work, the commission concludes he had good cause under Wis. Stat. § 108.04(8)(a) for the refusal. The commission therefore reverses the appeal tribunal decision.

The employe months previously had submitted a resume to the employer for a full- time position but, at that time, the employer did not have such work available for the employe. On October 13, at approximately 10:45 a.m., the employer telephoned the employe to offer him between a day and a day and a half's landscaping work. The employe was to report to the employer's office as soon as he could. The employe asked the employer if he could call back with an answer to the offer in a few minutes. The employe had other matters he was supposed to attend to at that time. He was scheduled to take a resume to an employer with whom he previously had submitted an application for permanent employment. Although it was not a certainty, the employe was to have an interview when he dropped off the resume, if that employer was free at the time. In addition, the employe's wife needed transportation to her employment, which began at 12:30 p.m.

To avoid unemployment insurance disqualification, an employe must establish good cause for a refusal of a bona fide offer of work. See Wis. Stat. 108.04(8)(a). In this case, first, it is not clear that the employe ever refused the employer's offer of work. The employe simply asked for a short amount of time in order to consider the offer. When the employe telephoned the employer a few minutes after the employer had made the initial offer, the employer was no longer available to talk to the employe. The employe never actually refused the employer's offer.

Assuming, arguendo, that there was a refusal of a bona fide offer of work, the commission concludes that the employe established good cause for that refusal. First, the offer was completely unexpected. The employe had submitted a resume to the employer several months previously, and had no advance indication that an offer of work would be forthcoming on October 13. Second, the employe had already spoken with another employer concerning permanent employment and, on October 13, was scheduled to take a resume to that employer and possibly be interviewed for permanent employment. The unemployment insurance law was not meant to force claimants to choose, at the risk of losing unemployment insurance eligibility, between a one-time, one-day assignment and application to a different employer for permanent employment. Third, the employe did not have convenient transportation to the work. Fourth, the assignment itself was of very short duration; a day or, at most, a day and a half's work. While any of these circumstances, taken alone, might not constitute good cause for a refusal of work, taken together they do. The commission therefore finds that, in week 42 of 1998, the employe failed to accept an offer of suitable work, but that that failure was with good cause within the meaning of Wis. Stat. § 108.04(8)(a).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance if he is otherwise qualified.

Dated and mailed May 20, 1999
whiteph.urr : 105 : 1   SW 800

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The commission's reversal nonetheless is not based upon a differing credibility assessment from that made by the administrative law judge; the administrative law judge indicated that she did not disbelieve the employe's testimony as to the reasons why he did not initially accept the employer's offer of work. The administrative law judge simply did not believe that those reasons constituted good cause for a refusal of an offer of work. For the reasons stated in the above opinion, the commission respectfully disagrees.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe had been out of work since before August 9, 1998 when he received a phone call with an offer of short-time work with the employer. The employe was past the canvassing period. The work he was offered was the type of work he wanted on a full-time basis. The employe did not accept the work but asked to delayed his decision and call the employer back. By the time he called the employer back the employer was not in his office.

The employe could not decide to accept immediately "because I had kind of like another job interview I was supposed to be kind of going to and returning an application." He later testified "In regard to what time this other interview was scheduled, at the time I dropped off my application she said if the guy was not busy he was going to give me an interview right away. I didn't have a set time set. She said to try and drop it off before 1o'clock. I put in my application with the employer on Monday, not on this day. I dropped off my resume at about 12:30, but did not have an interview. The guy I was supposed to talk to was busy doing some other work."

Transportation did not seem to be an issue because although the employe's wife needed to be at work at 12:30, the employe was able to drop off his resume at 12:30. Working for the employer for a day and a half was not unreasonable and would not likely have made a difference in his long-term employment prospects. The employe was still unemployed on November 30, 1998, the day of the hearing. The wage offered the employe was reasonable for the kind of work.

The employe did not have good cause to refuse the offer of work. I agree with the administrative law judge and would affirm the appeal tribunal decision.

__________________________________
Pamela I. Anderson, Commissioner


cc: ANDREW MORGAN


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