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

KENNETH L CLIPNER, Employe

SUNSET ORCHARD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99000387DV

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, an orchard, for about a year and a half. The employe was responsible for the sales of jams and jellies, for moving product to suppliers, and for overseeing the employer's retail store. The employe was also in charge of wholesale sales and advertising. At the time the employe was hired the employer notified him that things get slow in January and February and that it might ask him to help in the orchard. The employe indicated he would try it. The employe did not work in the orchard in January or February, although in April of 1998 he did spend a few days helping the employer plant trees.

In late October of 1998 the employe was laid off by the employer. He was asked to return in November to clean up a few things, and the employe performed some services for the employer, up until November 16 (week 47). On November 17 the employe came in to pick up his final paycheck, and the employer's manager, Alan Visnieri, asked the employe if he was planning to file for unemployment. The employe stated he had considered it. Mr. Visnieri indicated that if the employe was going to file for unemployment he would "throw [him] out in the orchard." The employe initiated a claim for benefits that day (week 47).

On November 20 Mr. Visnieri went to the employe's home. He indicated that he saw the employe had filed for unemployment, and stated that the employe could show up for work on Monday in the orchard. The employe turned down the job. The employer reiterated its offer on November 24 (week 48), but the employe again declined. The employe explained that he turned the job down because he was not in adequate physical shape for that type of work, because his working relationship with Mr. Visnieri had become strained, and because he was looking for work similar to what he had been doing previously.

The question to be decided is whether the employe's failure to accept the offer of work was for good cause and, if so, whether he was otherwise able to work and available for work.

Wis. Stat. § 108.04(8)(a) and (c) operate to suspend benefit eligibility in a case such as this, where an employe refuses work. However, Wis. Stat. § 108.04(8)(d) provides that an employe shall have good cause if it is determined that a failure to accept work related to work at a lower grade of skill or significantly lower rate of pay than applied to the employe on one or more recent jobs, and that the employe had not had a reasonable opportunity, in view of labor market conditions and the employe's degree of skill, but not to exceed six weeks after becoming unemployed, to seek a new job substantially in line with the employe's prior job skill and rate of pay. The employe's most recent job involved marketing, advertising, and the management of a retail store, and necessitated a substantially higher skill level than would be required for a job in the employer's orchard, which would have entailed pruning trees, clean-up, and general farm work. The employe indicated that he was looking for work similar to what he had been doing in his most recent employment and, given that the employer's job offer arrived within the first week after he became unemployed, it cannot be found that he had a reasonable opportunity to seek a new job substantially in line with his old one.

The commission therefore finds that in weeks 47 and 48 of 1998, the employe failed to accept an offer of work, but that failure was with good cause, within the meaning of Wis. Stat. § 108.04(8)(d), and that the employe was able to work and available for work, within the meaning of Wis. Stat. § 108.04(8)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 47 of 1998, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed April 30, 1999
clipnke.urr : 164 : 1  SW 806  CP 360

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal in this matter is not based upon an assessment of witness credibility, but is as a matter of law.

In his petition for review the employe pointed out that Wis. Admin. Code § DWD 129.01(4)(b) provides that the department will waive benefit claiming requirements based upon action by an employer directly or indirectly instructing, warning or persuading the claimant not to file a benefit claim. The employe indicated that on several occasions the employer attempted to influence him not to file a benefit claim. It does, in fact, appear from the record that the employer actively attempted to dissuade the employe from filing a benefit claim--enlisting assistance from the deacons of his church in order to pressure the employe to forego unemployment benefits--and that the employe stopped claiming for several weeks in response to the employer's actions. In the event the employe now wishes to file benefit claims for those weeks, he should contact a claimstaker from the department so that a determination can be made as to whether exceptional circumstances exist such as would permit him to file untimely claims for the weeks in question.

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