dissenting.
The Court’s statement of the factual background finds me in ready agreement, but as to the balance of the opinion, I respectfully dissent, suggesting that the reader will readily see from the history that Mrs. Guillard was entirely correct in her belief that she should and would find work at Emmett at a pay scale commensurate with what she had been receiving when her steady employer closed down its Emmett plant.1
I will endeavor to point out that both law and precedent are on the side of Mrs. Guillard, who above all on the record presented does not come across at all as a kennel-dog (Harry S. Truman, 1947) waiting for free meals.
The Court’s opinion makes no mention of the Commission’s unique conclusion that Mrs. Guillard rendered herself ineligible for benefits because she had “constructively” failed to be available for suitable work, the use of which word appeared to me to be of such significance that it was given some prominence in my own draft of the history of Mrs. Guillard’s claim.
In my view, and as I earlier stated it, we must decide as a matter of law whether the evidence substantiates the Commission’s legal conclusion that Mrs. Guillard had rendered herself ineligible for unemployment insurance benefits because she had “constructively” failed to be available for suitable work. Where Mrs. Guillard had initially been found qualified for benefits, I considered that our concern was also with allocation of the burden of proof where the Department sought to take away her entitlement.
Only when the Court’s opinion progresses to Part II does the Court begin a discussion of the only real issue in the case, i. e., whether as a matter of law the evidence substantiates the Commission’s conclusions.2
Constructive failure of availability for suitable work is, of course, before the Court as a matter of first impression, having heretofore found no place in the Court’s decision law, and not being any language found in the Employment Security Law. The Court *655may have wisely chosen to avoid any discussion of the term, but can it properly do so in disposing of the appeal? I think not.
Conclusion I of the Commission’s final determination states the language which is found in the statutory law:
“ ‘The personal eligibility conditions of a benefit claimant are that — (d) During the whole of any week with respect to which he claims benefits * * * he was able to work, available for suitable work, and seeking work; * * *.’ ” Idaho Code § 72-1366.
The facts as found and stated by Mr. Sheils, referee for the Commission, and approved and adopted by the Commissioners, in my opinion, clearly establish that absent any present discussion of “constructive failure,” Mrs. Guillard had not rendered herself ineligible. Those facts are:
“Claimant has over fourteen years experience in the banking and cost accounting fields. At the time of her lay-off claimant was earning $4.25 per hour working for Adco West in their cost accounting department. Claimant testified, and the Referee finds, no job will be acceptable to her which pays her less than $4.00 per hour. Claimant is mainly interested in work involving accounting. Claimant has two children, ages thirteen and nine. Because of these children she has declined to work out of the Emmett area. Claimant has been unemployed since October 5, 1976, except for three weekends in late April and early May, 1977, when she worked at the Emmett Racetrack, receiving $4.95 per hour. Also, beginning May 27, 1977, claimant worked for the Timber Inn in Emmett as an accountant-clerk, approximately four to eight hours a week, earning $4.25 per hour. Claimant has applied at several establishments seeking work in the accounting field. Once a week she checks with the Department of Employment for similar accounting-type work and has several leads, but the only prospective jobs are not available at the present time.”
Returning to the Commission’s interjection of “constructively” into its determination, I, for one, have no problem. The record is crystal clear that she knew her capabilities, knew what pay she should command, knew that work would come, and like the good bird dog, “applied at several establishments seeking work in the accounting field,” also checking weekly with the Department. In short order her efforts produced a position which paid her $3.88 an hour. In order to get benefits from the Department, should she have sought employment at lesser jobs and lesser pay in and around Boise? If she settled for a poor job with less pay, involving both commuting and babysitting, obviously she was not in a good position to continue her search for the kind of employment which she had had. Or, alternatively, does the law require her to abandon Emmett in favor of a large metropolitan area? I think not.
Having some idea as to what is meant by “constructive fraud,” I would suppose that the Commission by “constructive failure” intended a meaning that while Mrs. Guillard did everything right, and meant to comply with the law, and was extremely desirous of returning to work and supporting her two children, she held too good an opinion of herself, and should have realized that she had to lower her sights, had to find work in Boise, had to burn up petrol, had to hire babysitters, had to commute twice a day over Freeze-Out Hill, come summer, come winter. I disagree, and thought the matter was put to rest by this Court’s recent holding in Meyer v. Skyline Mobile Homes, 99 Idaho 754, 589 P.2d 89 (1979), and the earlier and age-venerated opinion of the Court in Johnson v. Employment Security Agency, 81 Idaho 560, 347 P.2d 764 (1959).
Frankly, I am at a loss to understand the Court’s attempt to distinguish Johnson for Mrs. Guillard’s case. Perhaps this is because of prior opportunities to drive from Spokane, Washington, to Coeur d’Alene, Idaho as well to traverse the road from the Boise area to Emmett. If anything, Mrs. Guillard would have a harder drive, and would spend considerably more for gasoline, *656although the time commuting might be about the same. I am completely unable to understand how the Commission in the first place, and then the Court, can ignore her responsibilities to care for two children. Unlike the other members of the Court, I do not in the least find it just or proper to speak in terms of Mrs. Guillard’s “self imposed restrictions,” implying that the same were not genuine or reasonable. As was brought out at oral argument, the Department placed nothing whatever in the record to show that there was suitable employment for Mrs. Guillard at Boise, at Meridian, or at Eagle, or anywhere. Yet it, not she, had the resources and knowledge to have done so. Asked if it would be too far to expect her to commute to Mountain Home, my recollection is that there was no answer, leaving wonderment as to just how far is “too far” so as to make it unreasonable to insist that a claimant extend her search area.
Turning to the burden of proof issue, the Court should be much persuaded, but is not, by a recent decision from California. In Sanchez v. Unemployment Insurance Appeals Board, 20 Cal.3d 55, 141 Cal.Rptr. 146, 569 P.2d 740 (1977) the claimant, Sanchez, was ruled ineligible for unemployment insurance benefits for rejecting weekend work because she had to care for her four year old son. During the previous nine years she had worked as a waitress and in a factory.
The Department concluded that Sanchez was not “able to work and available for work” in that her self-imposed exclusion from weekend employment eliminated a “major portion of her labor market.”
At a subsequent hearing, aside from the claimant’s testimony, no evidence was received concerning the size of the potential market for waitress labor within claimant’s time restrictions nor as to the potential market for factory work.
The language of that court is highly persuasive, and I commend it to my brethren:
“We are satisfied here that the second step of the determination of availability —i. e., whether the claimant has made himself available to a ‘substantial field of employment’ — calls for testimony regarding the size and character of the labor market which is ‘peculiarly within the knowledge and competence’ of the department. The average unemployed claimant with obviously limited resources cannot be expected to provide evidence which may be relatively complicated, expert, or difficult to obtain regarding local and area economic conditions. Nor would it be efficient to require the presentation of such data in every case on an issue which might be the subject of dispute in but a few.
“Accordingly, once a claimant has shown he is available for suitable work which he has no good cause for refusing, the burden of proof on the issue of whether he is available to a ‘substantial field of employment’ lies with the department. If the department believes that a given claimant, despite his availability for such suitable work, is nevertheless not attached to a labor market of sufficient dimension, it may be expected to explain its position and support it with appropriate evidence.” (Citation omitted)
141 Cal.Rptr. at 156-157, 569 P.2d at 750-51.
A holding that the Department has the burden of proof in this situation would be consistent with our recent case of Tappen v. State, Department of Health and Welfare, 98 Idaho 576, 570 P.2d 28 (1977). There we held that the Department of Health and Welfare had the burden of proof where they declared ineligible a claimant who had been receiving Aid to Dependent Children payments.
This Court has held in regard to availability that the general requirements of the statute are met when the worker is able, ready and willing to accept, and is seeking suitable work at a point where an available labor market exists. Claim of Sapp, 75 Idaho 65, 266 P.2d 1027 (1954).
As pointed out in Parsons v. Employment Security Commission, 71 N.M. 405, 379 P.2d 57, 60 (1963):
*657“ ‘ “A labor market for an individual exists when there is a market for the type of services which he offers in the geographical area in which he offers them. ‘Market’ in this sense does not mean that job vacancies must exist; the purpose of unemployment compensation is to compensate for the lack of appropriate job vacancies. It means only that the type of services which an individual is offering is generally performed in the geographical area in which he is offering them.” Freeman, 55 Yale L.J. 123, 124. “In short, the test of a worker’s availability is subjective. As long as no provision of the Act disqualifies him, he is entitled to its benefits * * * when he has exposed himself unequivocally to the labor market.” Mishaw v. Fairfield News, 12 Conn.Sup. 318, 321.’ ”
Accord, In re Barcomb, 132 Vt. 225, 315 A.2d 476 (1974). This Court has consistently held that “[ajvailability for work requires no more than availability for suitable work which the claimant has no good cause for refusing.” Johnson v. Employment Security Agency, 81 Idaho 560, 563, 347 P.2d 764, 766 (1959); Eytchison v. Employment Security Agency, 77 Idaho 448, 294 P.2d 593 (1956); Hagadone v. Kirkpatrick, 66 Idaho 55, 154 P.2d 181 (1944).
Suitable employment means work in the individual’s usual occupation or for which he is reasonably fitted. Loew’s Inc. v. California Employment Stabilization Commission, 76 Cal.App.2d 231, 172 P.2d 938 (1946).
In Sanchez, supra, the court said:
“However, the availability requirement is not satisfied merely by a willingness to accept all such ‘nonrefusable’ work. The purpose of the requirement has frequently been described as a way of assuring that a claimant is ‘attached to the labor market.’ The description is hardly transparent, but it is helpful because it implies that ‘availability’ makes some reference to the functions and needs of the economy as well as to the requirements of a particular worker. One consequence of this policy is that availability normally entails accessibility to work for which there is some social demand. Thus, a second element of the inquiry into availability consists of the determination whether, after a claimant has restricted his market to ‘suitable work which he has no good cause for refusing,’ he remains available for work for which there is a substantial field of potential employers.” (Citations omitted)
141 Cal.Rptr. at 152-153, 569 P.2d at 746-47.
Mrs. Guillard’s availability for work in the Emmett area is beyond dispute. The underlying issue then is whether there is sufficient evidence, whether or not provided by the Department — although it should seek to sustain the burden — before the Commission to justify a finding that her decision to restrict her area of employment to Emmett made her unavailable for work. The Commission’s findings do not support its conclusion.
I.C. § 72-1366 in pertinent part, says:
“[i]n determining for the purposes of this act, whether or not work is suitable for an individual, the degree of risk involved to his health, safety, morals, his physical fitness, experience, training, past earnings, length of unemployment and prospects for obtaining local employment in his customary occupation, the distance of the work from his residence, and other pertinent factors shall be considered.” (Emphasis added)
The court in Sanchez, supra, said:
“We conclude that a claimant who is parent or guardian of a minor has ‘good cause’ for refusing employment which conflicts with parental activities reasonably necessary for the care or education of the minor if there exist no reasonable alternative means of discharging those responsibilities. Indeed, ‘It is difficult to imagine a better cause for rejection of employment . . (Citations omitted) (Emphasis added)
141 Cal.Rptr. at 156, 569 P.2d at 750.
This Court has recognized the fact that a claimant for unemployment is not obligated to travel great distances from his home in *658order to satisfy the requirement that he actively be seeking work. Hudson v. Hecla Mining Company, 86 Idaho 447, 387 P.2d 893 (1963); Johnson v. Employment Security Agency, 81 Idaho 560, 347 P.2d 764 (1959).
In Meyer v. Skyline Mobile Homes, 99 Idaho 754, 589 P.2d 89 (1979), the claimant’s contention was that the commission failed to give adequate consideration to the distance from his residence to the work offered and the risk' that extended travel periods would have on his marriage and his ability to care for his children. This Court agreed and said:
“However, absent from the commission’s suitability analysis is consideration of the distance between Meyer’s residence and the work Skyline offered. Although the role of distance ordinarily becomes an issue where employees commute on their own time and at their own expense between their homes and fixed work places, nothing in I.C. § 72-1366(g) confines con- . sideration of the distance factor to the commuter context. (Citation omitted) We hold that distance must be considered in assessing the suitability of jobs which, by their nature, require traveling. If a reasonable person in Meyer’s position who truly desired to work would have considered the Skyline offer unacceptable, the Skyline offer would not have been an offer of suitable employment. It will be necessary for the commission to reconsider the suitability issue in this light.” Id. at 758, 589 P.2d at 93.
Whether it was or was not the obligation of the Department to sustain the burden of presenting sufficient evidence showing that Guillard had effectively removed herself from the labor market, the evidence does not sustain the Commission’s conclusion, or this Court’s affirmance. It is interesting to speculate as to the nature and quality of evidence Mrs. Guillard should have presented in order to derail the Commission’s view that she was constructively failing to be available. Mrs. Guillard, whether she knew it or not, was fighting the phantom of unknown standards. See Tuma v. Board of Nursing of the State of Idaho, 100 Idaho 74, 593 P.2d 711.
The decision of the Commission should be reversed with directions that Guillard be awarded benefits which may have accrued to her from the time she was erroneously ruled ineligible until she regained employment.
. Mrs. Guillard on her own volition found and accepted work paying $3.88 per hour. She had felt that work for which she was suitable should pay her $4.00 per hour. To my mind the 12 cent differential is too minimal to support a decision suggesting that she had set her sight too high.
. I am in total agreement that the discussion of the applicability of the A.P.A. to unemployment compensation proceedings is both extended and unnecessary. Only in proceedings in this Court did Mrs. Guillard have legal representation, having “gone it alone” throughout the Department hearings and in Industrial Commission proceedings, in which latter hearing no inquiry was made by the referee as to whether she had considered the advisability of going unrepresented into an adversary hearing. As would be expected, she voiced no objection to anything, and that should have been the beginning and end of Part I of the Court’s opinion.