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


KATHLEEN L SANDERS, Employe

BIRCHWOOD COURT, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96005788MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits as of week 45 of 1996, if otherwise qualified.

Dated and mailed March 26, 1997
sandeka.usd : 105 : 3  AA 220

/s/ Richard T. Kreul, Chairman

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, for the following reasons. First, the administrative code provision and the accompanying note both specifically include a "good cause" provision for failing to meet the 50 percent availability requirement of Wis. Admin. Code sec. ILHR 128.01 (2)(a). It is a canon of statutory construction that statutes or rules should not be so interpreted as to render part of them superfluous. Indeed, the note accompanying the code provision simply states that normally a failure to make childcare arrangements will be without good cause. This phrasing clearly contemplate situations where a failure or inability to make childcare arrangements is good cause for failing to meet the availability requirement. Second, as the administrative law judge found, the wages upon which the employe's benefit claim are based, were earned in second-shift work. Third, the employe has demonstrated a significant attachment to the labor market; she was already re-employed as of the time of the hearing in this case. For these reasons, and those stated in the appeal tribunal decision, the commission agrees with the administrative law judge that the employe had good cause for not meeting the 50 percent availability requirement of Wis. Admin. Code sec. ILHR 128.01 (2)(a).

cc: TRUE LIVING INC
BIRCHWOOD CT

GREGORY FRIGO
DIRECTOR, BUREAU OF LEGAL AFFAIRS

 

PAMELA I. ANDERSON, CHAIRMAN (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the department's petition that the employe has restricted her employment, without good cause, to less than 50% of the full-time opportunities for suitable work. In the past, we may have found good cause if the employer changed their hours and did not give them a reasonable amount of time to arrange for childcare during first shift hours.

In the employe's labor market 80% of the work was first shift. Based on the testimony that the employe gave at the hearing, she was not working at the time of the initial determination. The labor market information in Exhibit 1 shows that the employe is available for no more than 10% of the suitable work.

I do not agree with the majority that she has demonstrated a significant attachment to the labor market where she is available for less work than would be necessary to qualify under an uncontrollable restriction. This decision would greatly expand eligibility for benefits because of childcare.

For these reasons, I would reverse and find that the employe was not eligible for benefits as of week 45 until she is able and available again.

Pamela I. Anderson, Chairman


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