                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia


CAROLINE SWORD
                                         MEMORANDUM OPINION * BY
v.   Record No. 1373-98-3             JUDGE JERE M. H. WILLIS, JR.
                                              APRIL 6, 1999
AUTOMOTIVE INDUSTRIES, INC.
and
VIRGINIA EMPLOYMENT COMMISSION


             FROM THE CIRCUIT COURT OF RUSSELL COUNTY
                 Donald A. McGlothlin, Jr., Judge

          William B. Harper, II (Client Centered Legal
          Services of Southwest Virginia, Inc., on
          briefs), for appellant.

          James W. Osborne, Assistant Attorney General
          (Mark L. Earley, Attorney General; William A.
          Diamond, Assistant Attorney General; Lisa J.
          Rowley, Assistant Attorney General, on brief),
          for appellee Virginia Employment Commission.

          No brief or argument for appellee Automotive
          Industries, Inc.


     On appeal from a final judgment affirming the decision of

the Virginia Employment Commission denying her unemployment

compensation benefits, Caroline Sword contends (1) that the trial

court erred in holding that she lacked good cause to refuse the

offer of work, and (2) that the trial court abused its discretion

by considering whether she had been discharged for misconduct.

We find no error and affirm the judgment of the trial court.




     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                            I.    Background

        Automotive Industries, Inc., (“Automotive”) employed Sword

as a production worker from October 24, 1994 through June 16,

1995.    On June 16, 1995, she was discharged and began receiving

unemployment benefits.    On July 13, 1995, Automotive offered

Sword her previous job at the same rate of pay, $6.65 an hour.

She refused the offer and was denied further benefits, pursuant

to Code § 60.2-618(3).    She appealed.    The appeals examiner ruled

that she was entitled to resumed benefits.       Automotive appealed.

On behalf of the Commission, a special examiner reversed the

appeals examiner’s ruling.       The trial court affirmed the

Commission’s decision and held that Sword was ineligible for

benefits.

        Under Code § 60.2-625(A), “the findings of the Commission as

to the facts, if supported by evidence and in the absence of

fraud, shall be conclusive, and the jurisdiction of the court

shall be confined to questions of law.”        Code § 60.2-625(A).

“The [Commission’s] findings may be rejected only if, in

considering the record as a whole, a reasonable mind would
necessarily come to a different conclusion.”        Craft v. Virginia

Employment Commission, 8 Va. App. 607, 609, 383 S.E.2d 271, 273

(1989).    Sword does not contend that the job offered was

unsuitable.    The only issue before us is the Commission’s

determination that Sword lacked good cause to refuse the job.

This issue contains “mixed questions of law and fact reviewable

by this court on appeal.”     Johnson v. Virginia Employment

Commission, 8 Va. App. 441, 447, 382 S.E.2d 476, 478 (1989).




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        II.    Whether Sword Had Good Cause to Refuse Employment

        Sword argues that the conditions placed upon the job offer

by Automotive were punitive and would have forced her into a

position less favorable than that of a newly hired employee.

        The position offered was the same job Sword had held

previously, during the same shift and for the same rate of pay.

Sword would, however, lose her seniority, would have no accrued

vacation time, would be required to work all mandatory overtime,

and could miss no days of work for sixty days, except for

absences due to jury duty, death of her spouse, or a job-related

injury.       At the end of sixty days, she would have accrued three

vacation days.

        When Automotive made the job offer, Sword asked to report

late the first day of work, in order to attend the reading of a

will.    Automotive refused this request, and Sword rejected the

job offer.      Sword contends that she refused the job because she

would lose all seniority and because she was unhappy about the

handling of her last paycheck.      However, she discussed neither

concern when she was offered the job, nor did she state these

reasons for refusal prior to the hearings before the Commission.

        Sword “has the burden to show that good cause exists for her

refusal to accept suitable employment, and she must put forward

real and substantial reasons for her refusal.”       Johnson, 8 Va.

App. at 452, 382 S.E.2d at 481 (citation omitted).      The record

supports the finding that Sword did not carry this burden.         The

job offered the same type of work, at the same shift and at the

same rate of pay.      Evidence showed that the average wage for an




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entry level production worker at local facilities was $6.00 per

hour, less than the wage offered Sword.      Sword did not prove that

the sixty days probation and the loss of seniority were punitive

conditions.       She failed to establish “real and substantial”

reasons for her refusal of the job offer.

           III.    Whether the Trial Court Improperly Inquired Into
                                 Misconduct

     Sword next contends that the trial court improperly inquired

into the reasons behind her initial discharge.      She argues that

she had not been discharged for misconduct and that the trial

court was limited to the findings of the appeals examiner.         She

mischaracterizes the findings of the trial court and its

consideration of her original discharge.

     Within the appeals process before the Commission, each

hearing is de novo, and the Commission may “affirm, modify, or

set aside any decision of [the appeals examiner].”      Code

§ 60.2-622.       The final fact finder within the Commission was the

special examiner, and the trial court correctly accepted the

special examiner’s findings of fact that were supported by the

record.    The record supports the special examiner’s finding that

Sword was discharged “for violating the employer’s attendance

policy.”

     Inquiry into the cause of Sword’s dismissal was relevant in

determining whether she had good cause to refuse the conditional

offer of employment.      “Factors that do not directly affect a

job’s suitability but rather are peculiar to the employee and her

situation are factors which are appropriately considered as to

whether good cause existed to refuse suitable employment.”



                                   - 4 -
Johnson, 8 Va. App. at 451, 382 S.E.2d at 481.     The fact that

Sword had been disciplined for excessive absenteeism explained

the employer’s conditions.   Nothing in the record suggests that

either the Commission or the trial court determined that Sword’s

discharge was due to misconduct as defined under Code

§ 60.2-618(2).

     The record supports the finding that Sword lacked good cause

to refuse the employer’s offer of employment.    The conditions

placed on her employment were not punitive, but remedial.

Consideration of Sword’s excessive absenteeism prior to her

dismissal was proper, because her absenteeism explained and

justified the terms of the new employment offer.

     We affirm the judgment of the trial court.

                                                     Affirmed.




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