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


DALLAS L HOLIFIELD, Employe

P A STAFFING SER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601926MW


On March 11, 1999, the Department of Workforce Development issued an initial determination which held that the employe had cause for failing to accept an offer of work. The employer filed a timely request for hearing on the adverse determination, and hearings were held on March 31 and April 14, 1999 in Milwaukee, Wisconsin before a department administrative law judge. On April 21, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision and, by September 24, 1999 order, the commission remanded the matter for further hearing. That hearing was held on November 10, 1999; the case is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case performed one two-week assignment for the employer, a temporary help agency, in December of 1997. The employe initiated a claim for unemployment insurance in January of 1999, at which point the employer sought to avoid liability for its seven percent of the employe's unemployment insurance, by offering him a position pushing a broom in an auditorium at $6.50 per hour. The employe refused the offer because of the rate of pay, and the issue is whether he had good cause therefor. Based upon commission and court of appeals' precedent, the commission concludes that he did and so reverses the appeal tribunal decision.

The offer of work was for week 9 of 1999, and paid $6.50 per hour (for sweeping). The critical employment, though, is interim work the employe had from the beginning of November until Christmas in 1998. He was a punch press operator for Tower Automotive, earning approximately $22 per hour. Other interim employment is relevant as well. After the conclusion of the employe's December 1997 assignment with the employer in this case, the employe worked approximately 5 weeks at the Grady Foundry, earning $9 per hour. The employe also ran various machines for the Outboard Marine Corporation, beginning in July of 1998 and continuing until that company went out of business in December of 1998. The employe averaged approximately $17 per hour for that work. During this interim period, the employe also applied for machinist work at Briggs and Stratton ($15-18 per hour) and at Eden Corporation ($13-16 per hour).

In failing to consider the employe's Tower Automotive work, the administrative law judge correctly stated that the $6.50 per hour offer was beyond the so-called "canvassing period," the 6-week period in which a claimant may look for work in line with his or her previous employment. The commission and the court of appeals have adopted, though, a "sliding scale" for the period of time after the end of the canvassing period. This scale gave the employe good cause to refuse the sweeping assignment at issue in the present case.

The court of appeals decision is DILHR v. LIRC, 193 Wis. 2d 391, 535 N.W.2d 6 (Ct. App. 1995). In that case, the claimant was terminated as the result of the sale of the store. The claimant had been a head cashier, with bookkeeping and scheduling responsibilities, earning $12.10 per hour. Approximately two months after the claimant learned she would be losing her job, she refused an offer of $6 per hour for mail clerk work, on the ground that the pay was so low she would be unable to pay her bills after her partial benefits ran out. The court of appeals reasoned as follows:

Under para. (a), after the six weeks has expired, LIRC considers the pay and skill level in relation to how long the claimant has been out of work. There is certainly nothing in the language of para. (a) that prevents LIRC from considering these two factors in deciding whether a claimant has refused suitable work without good cause.

We conclude LIRC's interpretation of paragraphs (a) and (d) is reasonable and consistent with the statutory language. It gives claimants a short period of time within which they may refuse job offers that involve lower skills or pay and not risk ineligibility. After that time period, refusals for those reasons will be subject to scrutiny and may affect eligibility. But LIRC still retains the discretion to decide, based on a claimant's particular circumstances, whether the offer is for suitable work, taking into account the pay, skill level and period of unemployment.

The department argues that even if LIRC's interpretation of paragraphs (a) and (d) is correct, LIRC erred in deciding that Wileman had good cause to reject the offer from Hufcor because the work was not suitable. We disagree. Wileman had been out of work only two months. Her experience would permit her to perform work at a higher wage and a higher level of responsibility than that of a mail clerk. She was diligent in looking for appropriate work. The job at Hufcor paid less than half that of her previous job and would interfere with her ability to find a job that paid more. LIRC's conclusion that, "[g]iven the totality of circumstances" Wileman had good cause to decline the Hufcor offer, was based on credible evidence and was reasonable.

The commission's reasoning in this case was as follows:

However, a worker may have good cause to refuse an offer of work apart from the canvassing period and the commission believes that the employe in this case has established such good cause. The position offered was not suitable for her because it was at less than half her former rate of pay and was not as a cashier or a similar position to what she held for the employer as its head cashier, but involved duties as a mail clerk. Given the totality of circumstances, the commission finds that the employe had good cause to refuse this offer of work.

The employe's work history is sufficient to meet the sliding scale criteria the commission and court of appeals applied in DILHR v. LIRC, 193 Wis. 2d 391, 535 N.W.2d 6 (Ct. App. 1995). The commission therefore finds that, in week 9 of 1999, the employe failed to accept an offer of suitable work, but that the failure was with good cause pursuant to 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 February 3, 2000
holifda.urr : 105 : 6  SW 800   SW 875.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge; rather, the reversal is as a matter of law, due to application of case law not considered by the administrative law judge.

The dissent questions the employe's credibility, based upon his assertions that he was a salesman for Tower Automotive earning approximately $500 per week. That assertion was listed on the employe's statement to the Department of Workforce Development during its investigation of his benefit claim. It was taken by telephone, and the employe never adopted it as his own statement. As hearing, in contrast, the employe testified specifically that he had worked as a punch press operator for Tower Automotive, earning approximately $22 per hour. He testified that, before he worked as a machine operator for the Outboard Marine Corporation, he had worked as a car salesman for Fred Jones Pontiac. There may be some work history missing from the employe's statement on his UCB-157 but, in the commission's opinion, that is an insufficient basis upon which to conclude that the employe is lying about his work history.

The dissent also points out that the cashier in DILHR v. LIRC had worked in her job for 12 years. The length of the cashier's employment was not a factor either in the commission's reasoning or in that of the court of appeals; the reasoning of both bodies is quoted above, in the decision. The employe's circumstances do meet, on the other hand, the criteria the commission and court of appeals did consider in that case.

 

Pamela I. Anderson, Commissioner, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I have great credibility questions about the employe. At the hearing the employe testified his rate of pay at Tower Automotive was $22.50 and he was a punch press operator. In exhibit 2, the statement he gave to the department investigator, he said "I last worked for Tower Automotive as a salesman for about $500.00 per week and my last day for them was 12/23/98 and they are the last employer I worked for." There is a major difference between earning $500 a week as a car salesman and $900 (at 40 hours) as a punch press operator.

The employe also worked for Outboard Marine Corporation for 5 or 6 months. He testified he averaged $16.97 per hour. The department records indicate that he earned $8,906.08 at Outboard Marine so even if he worked only 20 weeks he would not have earned more than $11 an hour.

The employe frequently changed jobs because he either quit or was fired. This case is not at all like DILHR v. LIRC where the employe had worked in her job for 12 years and clearly had the skill levels of a head cashier with bookkeeping and scheduling responsibilities. In this case, I have major questions if the employe was a punch press operator (based on the employe's own stories) or machinist. The employe testified "I didn't have any formal training, other than on-the-job type." In DILHR v. LIRC, the Commission expanded the time for the employe to look for suitable work because of her long experience. This employe does not present a record of long experience in anything. Unfortunately he has not been successful in keeping a job very long.

For these reasons, I would agree with the administrative law judge and affirm his decision.

____________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY PETER DONOHUE
PHILLIPS DONOHUE & CYMERMAN SC


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