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


BARBARA L YOUNG, Employe

PRISM PARTNERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200527EC


On March 11, 2000, the Department of Workforce Development issued an initial determination which held that the claimant was, with due notice, called on by her current employer to perform work actually available but was unavailable for such work. The employe filed a timely request for hearing on the adverse determination, and hearing was held on April 11, 2000 in Eau Claire, Wisconsin before a department administrative law judge. On April 19, 2000, 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 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

The employe continues to work as a merchandiser for the employer, a business which does merchandising and display services for retail businesses around the country. The employe refused an assignment to Nashville which would have occurred in all or parts of weeks 10-12 of 2000, and the issue is whether that refusal is disqualifying. The commission concludes that it is not, and so reverses the appeal tribunal decision.

On February 24, 2000, the employer notified the employe of a merchandising assignment in Nashville, for March 2-13. The employer indicated that it would need an answer by the employe by noon the next day. An employer representative again telephoned the employe at approximately 4:00 p.m. on February 24, indicating that the district manager needed the employe's answer right away (because of having to make travel arrangements). The employe had not yet been able to contact her husband or her in-laws, in order to make child care arrangements for the two weeks she would be gone. She has two children, ages 10 and 14; her husband was in the field on a surveying assignment, and the employe had only been able to leave messages for a friend and for her in-laws. Since the employe had not been able to contact any of the necessary individuals, when the employer called her that afternoon she declined the assignment.

Wisconsin statute § 108.04(1)(a) disqualifies an employe from benefit eligibility to the extent that 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." The commission agrees with the administrative law judge that the work was actually available, even though it was in Nashville. On previous occasions, the employe had traveled to such locations as Albuquerque and Boston, in her work with the employer.

The statutes also requires due notice of the work available, however, and it is that which is lacking in this case. In previous instances where the employe was given far-away assignments, the employe had had substantially more time in order to make necessary child care arrangements so as to be able to take the assignments. In the present case, essentially, the employe was asked, with only a few hours' notice, to take a long-term assignment half way across the country, before being given reasonable opportunity to check with relatives and friends as to their availability to look after her children while she was gone. This is insufficient time to constitute due notice under Wis. Stat. § 108.04(1)(a).

There is no "bright line" regarding the exact amount of advance notice one must receive for an assignment. The Department of Workforce Development does not consider an hour's notice generally to be reasonable, even for a local assignment. Unemployment Insurance Manual, Vol. 3, Part VII, Ch. 3, sec. F, p. 4. The commission has generally agreed that the one hour notice is generally not reasonable; on the other hand, three weeks' notice of assignments is generally reasonable. See Whitehead v. Midwestern Performance Assessment Center, Inc., UI Dec. Hearing No. 99607528MW (LIRC May 3, 2000). The notice in this case was much closer to the one hour' notice which is insufficient, than it was to the three weeks' notice which is sufficient.

The commission therefore finds that, in weeks 10, 11, and 12 of 2000, the employe was not with due notice called on by the current employing unit to report for work actually available in that week, and that the employe was available for, and able to perform, all of the available work, within the meaning of Wis. Stat. § 108.04(1)(a).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance, without reduction pursuant to Wis. Stat. § 108.04(1)(a), in weeks 10-12 of 2000.

Dated and mailed July 28, 2000
youngba.urr : 105 : 1 AA 110

/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 in this case. He did not think it plausible that the employer would have moved up the deadline for the employe's acceptance or rejection of the assignment in question. The employer had only hearsay evidence on that issue, however; in contrast, the employe had firsthand, non-hearsay evidence to support her case. In addition, the commission does not believe it implausible in the least that the employer would have to know sooner than initially expected, whether the employe would be able to take the assignment.

The dissent credits the district manager's testimony to the effect that the employer had already purchased a ticket in the employe's name for the trip in question. This does not necessarily mean, however, that the employer still was not insisting upon an answer from the employe by the afternoon of February 24. The employer was on notice that evidence would have to be presented by individuals with firsthand knowledge thereof; it was the employer's responsibility to have presented as a witness the individual who actually conferred with the employe regarding the assignment in question.

The dissent also suggest, finally, that the employe contradicted herself regarding her attempts to contact family and friends regarding childcare for the trip in question. That lack of contact indicates only that the employe had not been able to reach anyone and verify whether she would have childcare for her children while she was out of town. The employe's testimony establishes only that she had not spoken with them; it does not establish, as the dissent asserts, that the employe had not promptly and thoroughly searched for childcare for the trip.

 

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with result reached by the majority herein and I dissent. The employer testified that "Usually we'll offer it and they have until 5:00 PM the next day to respond. The voicemail for the Nashville trip would have been left at about 10:00 AM on 2/24/00. We were seeking an answer by 5:00 PM on 2/25." The district manager also testified "We had purchased a ticket in the employe's name. That's how certain we were that she would be going on this trip." The employe said she received a call from the team leader about 11:00 AM on 2/24. The employe said she had until noon the next day to respond but then the team leader called back an said Hager, the district manager, needed the answer right away because they needed advance flight tickets.

While it would have made the case easier to decide if Ms. Warnen, the team leader had testified, I credit the testimony of Hager who testified that they already had a ticket in the employe's name at the time of the first call. I believe that the employer offered her work which was available and which she was able to do. She had time to arrange care for her children prior to her leaving. She indicated she especially needed to have someone lined up to be available to take the children home from school if they got sick and were not able to reach her husband. She had done this before and should not have been surprised by the offer.

The employe seems to contradict herself on how much effort she put into finding care. She testified "I haven't checked with anyone to see if they could look after my kids. I left a message at my husband's office to call me right away. He didn't get back home until after 6:00 PM." Then she says "By 4:00 I had left a message for my husband and I had left a message for a friend of mine and I had left a message for my in-laws. I had not heard back from anybody by 4:00."

I believe the employe had sufficient time to arrange child care for her children and thus I would find that she was 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 such work.

_____________________________________
Pamela I. Anderson, Commissioner


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]