Wis.LIRC UC Decision: Willert - March 23, 1989 - AA 285 - Able & Available, Wages; SW 825.15 - Experience

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

FREDERICK WILLERT, Employe

Involving the account of

TWO RIVERS PUBLIC SCHOOL, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 88-401443MN

On June 9, 1988, the department issued an initial determination in the above-captioned matter, which held the employe was eligible for benefits because he was able to perform at least 15 percent of the suitable jobs in his labor market. The employer timely requested a hearing, which was held July 25, 1988, in Manitowoc, Wisconsin, before Administrative Law Judge Judith L. Allen. An appeal tribunal decision issued July 29, 1988, which held that the employe was eligible for benefits in weeks 10 through 15 of 1988. The employe has timely petitioned for commission review of the July 29 appeal tribunal decision.

Based on the applicable law, records, and evidence in this case, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 30 years for the employer, a public school district. He was a teacher the first 12 years of his employment, and a principal the last 18 years. In December of 1987, the employe resigned his principalship because of stress. He subsequently sought medical help. On February 19, 1988, the employe's physician executed a statement purporting to release the employe to return to work. The employe attempted to return to work beginning March 1, 1988, but was prohibited from doing so by the employer, who deemed the employe's release insufficient to allow his return to work. The employe apparently never returned to work for the employer.

The employe filed a claim for unemployment benefits in week 22 of 1988. As noted above, the initial determination held the employe was eligible for benefits effective week 10 of 1988. The appeal tribunal deemed the release sufficient to show the employe was physically able to work as of March 1. The commission agrees, and so finds. The employe's physical ability to work on March 1, however, is not relevant to unemployment compensation purposes. This is because the employe did not file a claim for benefits until week 22 of 1988. No one has challenged the employe's physical ability to work as of week 22 of 1988.

TheAppeal Tribunal found also that the employe's wage restriction made the employe unavailable for work within the meaning of section 108.04(1)(b)1 of the Statutes. The employe expressed a reluctance to accept an annual salary of less than $25,000.00. This is understandable, since he had been a public school principal for almost two decades and with a most recent annual salary of approximately $35,000.00. The employe is capable of performing many kinds of work in addition to school administration, including building and contracting work, such as cement finishing and electrical and plumbing work, and consulting in mathematics education. The employe testified, in addition, that he could work in a factory or coal yard. That one could shovel coal, however, does not automatically make such work suitable within the meaning of section ILHR 126.001(12), which defines suitable work as work that is reasonable considering a claimant's training and experience.

The employe's work background is in professional, managerial, and technical work, and skilled and semi-skilled labor. The commission therefore finds that suitable work for the employe includes work in the professional, managerial, technical, and skilled and semi-skilled labor areas.

The Department provided expert testimony from one of its labor market analysts, to the effect that most professional work, 75 percent of skilled labor work, and 40 percent of semi-skilled labor work pay at least the employe's wage restriction, or $25,000.00 per year. Professional, managerial, and technical work make up 15 percent of the available work in the employe's labor market; skilled labor, 15 percent; semi-skilled labor, 20 percent. Based upon these figures, it is clear the employe's wage restriction has not rendered him unavailable for more than 50 percent of opportunities for suitable work, and the commission so finds. The employe therefore is not disqualified by section ILHR 128.01(2)(a), which deems an employe unavailable for work if the employe, without good cause, restricts his or her availability for work to less than 50 percent of the full-time opportunities for suitable work in the employe's labor market area. The employe therefore is available for work, within the meaning of section 108.04(1)(b)1. of the Statutes, and the Commission so finds.

The employe is eligible for benefits only for weeks 22 and 23 of 1988, however. On July 13, 1988 the Department issued another Initial Determination, which held that the employe was discharged for misconduct connected with his employment, in week 24 of 1988. That determination became final when the employe withdrew his request for hearing on it and the Department issued an Appeal Tribunal Withdrawal Decision.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe would be eligible for benefits if he were otherwise qualified. As noted, though, he is not otherwise qualified.

Dated and mailed March 23, 1989
105 : CD1012 AA 285 SW 825.15

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

NOTE: The Commission consulted with the administrative law judge to determine the credibility of the employe's assertion he would accept work paying $25,000 per year. The Commission's reversal, however, is as a matter of law.

PAMELA I. ANDERSON, COMMISSIONER (concurring):

I agree with the majority that the employe is ineligible for unemployment benefits because another decision found that he was discharged for misconduct connected with his employment.

I would find that this case is moot so I would decline to rule on the merits.

____________________________________
/s/ Pamela I. Anderson, Commissioner

cc: FREDERICK WILLERT

ATTORNEY LORENE M MOZINSKI

N.B.: The final paragraph of the FINDINGS OF FACT AND CONCLUSIONS OF LAW portion of this decision was inserted into the decision as a result of a subsequent order, issued on April 18, 1989, amending the decision.

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