Opinion
No. 2013AP2056.
2014-07-1
Patricia J. McLISH, Plaintiff–Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION and City of Superior, Defendants–Respondents.
Appeal from an order of the circuit court for Douglas County: Kelly J. Thimm, Judge. Affirmed.
Before HOOVER, P.J., MANGERSON and STARK, JJ. ¶ 1 PER CURIAM.
Patricia McLish, pro se, appeals an order affirming the Labor and Industry Review Commission's (Commission) decision to deny her claim for unemployment insurance benefits. McLish argues she is entitled to benefits because there was good cause for her refusal to accept an offer of work within the meaning of Wis. Stat. § 108.04(8). Because there is credible and substantial evidence to support the Commission's decision concluding otherwise, we affirm the order.
All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted.
¶ 12 McLish argues the Commission's use of a weekly wage comparison is unfair and unreasonable when the hours worked per week are different. She offers the extreme example of an employee working twenty hours per week at $20 per hour being offered a position working forty hours per week at $10 per hour. McLish contends it would be unfair to expect the hypothetical employee to accept the offered position even though the employee's weekly wages remained the same. This challenge to the Commission's decision is not persuasive, as McLish compares part-time work to full-time work. Because the position offered to McLish consisted of full-time hours, the Commission appropriately compared it with McLish's most recent full-time work.
“Full-time” work means work that is performed for thirty-two or more hours in a week. See Wis. Admin. Code § DWD 100.02(28).
¶ 13 When comparing McLish's weekly wages for the previous position and the offered position, the Commission concluded the offered position would result in a 12.7% reduction in pay. The Commission, however, looked beyond the simple wage comparison and also properly considered the pay scale progression and the fringe benefits offered in determining that the new position did not provide a significantly lower rate of pay within the meaning of Wis. Stat. § 108.04(8)(d). We conclude the Commission reasonably utilized weekly wages to compare McLish's previous position with the offered position.
¶ 14 McLish also challenges labor market information the Commission cited in concluding that McLish lacked good cause to refuse the offered position. Wisconsin Stat. § 108.09(4n) provides that if the Department of Workforce Development maintains a database system of occupational information and employment conditions data, reports based on this data may be created and admitted into evidence at a hearing. A “conditions of employment” database (COED) report may constitute prima facie evidence of labor market information. See Wis. Stat. § 108.09(4n).
¶ 15 At the hearing before the ALJ, two COED reports were introduced. One provided relevant labor market information regarding wages, shifts and travel distances for a position identified as “Clerk, Engineering,” and the other provided labor market information for a position identified as “Technician, Civil Engineering.” The Commission relied on the “Clerk, Engineering” COED report to conclude that the offered position's hourly wage of $14.23 was customary for similar work in the relevant labor market. The report noted that 25% of “Clerk, Engineering” workers in that market earned less than $12.25 per hour, with a pay range of $10.62 to $18.77. McLish argues the Commission could not reasonably conclude the offered position was similar to that found in the “Clerk, Engineering” COED report, as that title gave no definition of duties. As the Commission points out, however, “Clerk, Engineering” was described in the report as: “All other material recording, scheduling and distributing works not classified separately above. Include: Engineering Clerks and Traffic-rate Clerks.” That the description was not more specific, does not mean it was inapplicable.
¶ 16 McLish further contends that because the offered position involved the same work she performed as an “engineering technician” with the temporary staffing agency, the Commission should have relied on the “Technician, Civil Engineering” COED report, which listed a pay range of $12.29 to $27.74, with 25% of workers earning less than $16.73. The City's Human Resources Administrator, Cammy Koneczny, testified, however, that although McLish had been called an engineering technician, “she was an employee through a temp service,” and when “utilizing people through a temp service we're utilizing them for whatever type of work we need done that fits certifications.” Koneczny added that although McLish was called an engineering technician and paid similar to engineering technicians, all other engineering technicians reported to the engineering manager, while McLish reported to an administrative manager. Koneczny opined that the research assistant position offered was “most aligned” with the work McLish was doing. To the extent McLish may dispute Koneczny's testimony, the weight and credibility of testimony are to be decided by the Commission. See E.F. Brewer Co. v. DILHR, 82 Wis.2d 634, 636–37, 264 N.W.2d 222 (1978).
¶ 17 Based on the evidence, the Commission could reasonably infer that the chain of command was a reflection of the work McLish had primarily done and would continue to do—asset inventorying—and this type of work is performed by engineering clerks, not engineering technicians. The Commission thus reasonably concluded that despite McLish's previous job title, the work she most recently performed and the job offered more accurately fell within the “Clerk, Engineering” COED report.
¶ 18 Ultimately, McLish's attempt to offer a reasonable alternative interpretation of the statute is immaterial to our review. As noted above, when applying great weight deference, we uphold the Commission's interpretation and application of the statute as long as it is reasonable and consistent with the statute's language, regardless whether other interpretations are reasonable. Hubert, 186 Wis.2d at 597, 522 N.W.2d 512. There is credible and substantial evidence to support the Commission's conclusion that McLish lacked good cause to reject suitable work offered by the City.
Order affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5.