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


AMY L WAGENKNECHT, Employe

P A STAFFING SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605002MW


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 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, if otherwise qualified.

Dated and mailed October 20, 1999
wagenam.usd : 105 : 2 SW 844 SW 845

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer asserts in the petition for review that the Department of Workforce Development's labor market analyst testified that the "room attendant" classification best described the position the employer offered the employe. This assertion is incorrect. The labor market analyst testified that the job in question did not fit, "word for word," in either the "room attendant" or "cleaner/custodian" classification, and the labor market analyst had to make a judgment as to which of the two categories was most appropriate. The labor market analyst testified that, based upon his experience, he would put the work in question into the cleaner/custodian category. As the administrative law judge found, though, the "substantially less favorable" wage for that category is $7.08 per hour, which is above the $6.50 per hour wage for the position in question. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

The dissent asserts that none of the employe's duties are found in the cleaner/ custodian classification the labor market analyst applied. The cleaner/custodian description, however, is to keep the premises of commercial buildings clean, by dusting, polishing, scrubbing, waxing, vacuuming, etc. Since sweeping is similar to vacuuming, dusting, and scrubbing, the majority believes the dissent's assertion and resulting credibility assessment against the labor market analyst is incorrect. The commission again notes, finally, that the notion of "similar work" in Wis. Stat. § 108.04(9)(b) is not an exact one, always capable of precise definition. The expert witness also provided a basis for questioning the database report the dissent relies upon; he believed it questionable, as does the commission, that the 25 percent cutoff for "substantially less favorable" wages would be at $5.31, only six cents above the statutory minimum wage. For these reasons, the commission agrees with the labor market analyst's choice of the cleaner/custodian category over that of maid/housekeeper.

PAMILA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The job the employe was offered consisted of sweeping and no other duties. The labor market witness found that the job fell into the cleaner/custodian position because the duties are more in line with dusting, mopping, and vacuuming.

The job of cleaner/custodian included this description "Keep premises of commercial building, working areas of production departments, laboratory equipment, and churches clean. Dust, polish, scrub, wax, vacuum, etc. to clean surfaces. Include: Sextons and Venetian Blind Cleaners."

The job of maids and housekeeping cleaners included "Perform any combination of tasks to maintain private households or commercial establishments, such as hotels, restaurants and hospitals, in a clean and orderly manner. Duties include making beds, replenishing linens, cleaning rooms and halls, and arranging furniture."

Of these two descriptions, the maids category is the lighter work. The employe in our case was not asked to dust, mop or vacuum. All the person was asked to do was sweep. No machinery would be used to perform the job while the cleaner/custodian would likely use a vacuum, floor polisher, and a waxer which are all power driven. We have had other cases with sweepers where other labor market witnesses have found the maid category appropriate for this work. Since none of the duties the employe was asked to do were included in the cleaner/custodian position and since those jobs included industrial settings where the place would be more difficult to clean, I believe the witness was not credible. I would apply the maids category and find that the job offer was not substantially less favorable to the individual and deny benefits under labor standards.

_______________________________________
Pamela I. Anderson, Commissioner


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