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

FREDRICK WATKINS, Employee

CORNWELL PERSONNEL  ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03600848MW


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 employee worked in temporary assignments for the employer, a staffing agency, from December 3, 2001, to February 14, 2002; and from February 19- March 17, 2002. After March 17, the employee regularly telephoned the employer, until some time in October or November of 2002, to determine if there was work available for him.

Prior to December 16, 2002, an assignment became available for the employee, and the employer telephoned the number where the employee received messages, and left messages for the employee to return the call but he failed to do so.

As a result, in a letter dated and postmarked on December 16, 2002, the employer offered the employee a third-shift general laborer position paying $8.10 per hour. This letter was sent by certified mail/restricted delivery, and the post office records indicate that delivery was attempted but unsuccessful on December 17 and 24, 2002, and January 2, 2003, and the letter was then returned to the employer.

The employee next worked in an assignment for the employer on January 26 and 27, 2003.

Wisconsin Statutes § 108.04(8)(c) provides in relevant part as follows:

If an employee fails, without good cause, to return to work with a former employer that recalls the employee within 52 weeks after the employee last worked for that employer, the employee is ineligible to receive benefits . If an employee receives actual notice of a recall to work, par. (a) applies in lieu of this paragraph.

It is undisputed that the employee did not receive actual notice of the recall. The question presented by § 108.04(8)(c), then, is whether the employee was "duly recalled" by the employer. An individual is duly recalled when an employer has followed the contractual procedure or has made a reasonable effort to get notice of the recall to the claimant but was unable to contact the claimant. O'Keefe v. ANR Advance Transportation Co., Inc., UI Hearing No. 98603648MW (LIRC Jan. 29, 1999). In the absence of a contractual procedure, notifying an employee by certified letter is a reasonable method for notifying a worker that work is available. Robinson v. P. A. Staffing Service, Inc., UI Hearing No. 99605379MW (LIRC Oct. 28, 1999). See, also, Hoffman v. Milwaukee Valve Co., Inc., UI Hearing No. 90-001317MD (LIRC Aug. 13, 1990); Plasky v. Crescent Woolen Mills, UI Hearing No. 98402241MW (LIRC March 31, 1999)(a recall letter sent to an employee's last known address by first class mail constitutes reasonable notice).

The commission concludes, under the circumstances present here, that leaving telephone messages at the number utilized by the employee to receive messages and sending a certified letter to the employee's mailing address constituted a reasonable effort by the employer to get notice of recall to the employee.

According to the applicable COED report (exhibit #4), the terms of the employer's offer were not substantially less favorable to the employee than those prevailing for similar work in the employee's labor market area, and, as a result, the employee did not have good cause, within the meaning of Wis. Stat. § 108.04(9), to refuse the offer of work.

The Commission therefore finds that in week 52 of 2002, the employee failed, without good cause, to return to work with a former employer that had recalled the employee within 52 weeks after having last worked for that employer, within the meaning of sec. 108.04(8)(c), Stats.

The Commission further finds that the employee was paid benefits in the amount of $1,448, for which he was not eligible and to which he was not entitled, within the meaning of sec. 108.03(1), Stats. Pursuant to sec. 108.22(8)(a), Stats., he is required to repay such sum to the Unemployment Reserve Fund.

Finally, the commission finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 52 of 2002, and until seven weeks have elapsed since the end of the week in which the failure occurred and he has earned wages in covered employment performed after the week of the failure equaling at least 14 times his weekly benefit rate which would have been paid had the failure not occurred. He is required to repay the sum of $1,448 to the Unemployment Reserve Fund.

Dated and mailed August 13, 2003
watkifr . urr : 115 : 1  AA 110

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not consult with the administrative law judge since its reversal of his decision did not rely upon a different view as to the credibility of the witnesses, but instead upon a different interpretation of the applicable law.


cc: Fredrick Watkins


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