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

JERMAIL D MILLS, Employee

EMMPAK FOODS INC, Employer
c/o UC EXPRESS

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03605739MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 32 of 2002, if otherwise qualified.

Dated and mailed January 8, 2004
millsme . usd : 115 : 2   VL 1034  PC 714.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee worked two weeks on the third shift as a general laborer and sanitation worker for the employer, a meat processor. Since the employee did not appear for the hearing, it is undisputed that he did not report to work or contact the employer after the last day he worked, i.e., August 6, 2002. The employer contends that, on November 22, 2002, it discharged the employee as a result.

However, the commission has generally held that failing to report to work or to contact the employer after an employee's last day of work is a job abandonment which constitutes a quitting. See, e.g., Adams v. M M Schranz Roofing, Inc., UI Hearing No. 00600375MW (LIRC March 24, 2000).

Wisconsin Statutes § 108.04(7)(e) provides an exception to the quit disqualification if an employee accepted work which he could have refused under § 108.04(9), and terminated such work within the first 10 weeks of his employment. Wisconsin Statutes § 108.04(9)(b) provides that benefits shall not be denied to an individual who refuses to accept new work if the hours are substantially less favorable than those prevailing for similar work in the locality. The administrative law judge found, after taking administrative notice of a labor market report generated on the day of hearing, that less than 8% of full-time workers are scheduled on the third shift in the relevant labor market, that the employee could have refused such work as a result, and that his quitting within the first 10 weeks would not disqualify him from receiving benefits, and the commission agrees. Although it would have been a better practice for the administrative law judge to have made the labor market report a part of the hearing record or to otherwise provide the parties an opportunity to object to it before he issued his decision, his failure to do so, in the absence of objection from the employer in its petition, would not provide sufficient justification for reversal or remand under the circumstances present here. See, Morgan v. Eckert Door Co., Inc., UI Hearing No. 98602750MW (LIRC Aug. 4, 1998)(commission remanded case for new hearing where employer objected in petition for commission review to labor market report which the ALJ did not make a part of hearing record but instead took administrative notice of in his decision).

cc: Emmpak Foods, Inc., Milwaukee, WI 53233


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uploaded 2004/01/12