ROBERT T PINKOS, Employee

BURGESS CAR & TRUCK SERVICE CENTER INC, Employer

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:

The employee worked for the employer as an auto mechanic until May 1, 2003 (week 18), at which time he quit. The employee's quitting was related to allegations of harassment on the part of his supervisor. The commission issued an earlier decision, finding that the employee's quitting was not with good cause, where he failed to complain about the perceived harassment or offer the employer any opportunity to remedy the situation. Pinkos v. Burgess Car and Truck Service Center (LIRC, Nov. 26, 2003), aff'd, Robert T. Pinkos v. LIRC and Burgess Bοys Auto & Truck Service Center, Case No. 03-CV-010792 (Wis. Cir. Ct., Milwaukee Co., May 20, 2004). The employee also filed a wage claim after quitting. The Equal Rights Division determined that the employee was owed back wages. However, the employer filed an appeal and, as of the date of the hearing, that matter had not been finally resolved.

After the employee quit, the employer sent him numerous letters offering him reemployment. Although the employee received most of these letters, he did not respond. The offer of work which is at issue in this case was extended to the employee by certified letter dated August 18, 2003, and was for work to begin on August 20 (week 34). The letter was sent to the employee at his address of record with the employer, to which the employer had sent other letters which the employee received. The United States Postal Service made three unsuccessful attempts to deliver the August 18 letter, then returned it to the employer.

The appeal tribunal found that the employee did not refuse a bona fide offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a), because the employee never received the employer's letter. However, in cases in which an individual is offered work by a former employer within 52 weeks of the separation from that employer, but no actual contact is made offering that work, the issue is resolved under Wis. Stat. § 108.04(8)(c), which provides that an employee is ineligible for benefits if he or she fails without good cause to return to work upon recall by a former employer within 52 weeks of the separation. The statutory provision in question is not limited to a recall from a definite or indefinite layoff, but also encompasses a former employer's recall of an employee who voluntarily quit. See, Hoffman v. Milwaukee Valve Co. Inc. (LIRC, August 13, 1990). Moreover, the statute only applies when an employee receives something less than actual notice that he is being recalled to work. An individual is duly recalled when the employer has followed the contractual procedure or has made a reasonable effort to get notice of the recall to the employee, but is unable to contact him. O'Keefe v. ANR Advance Transportation Co. Inc. (LIRC, Jan. 29, 1999).

In this case, the employer made a reasonable effort to notify the employee of a recall by sending him a certified letter at his most recent address. The employer's efforts constituted due notice.

Having found that the employee received due notice of a recall by his former employer, a question arises as to whether he had good cause for failing to return to work. In a note at the end of its decision the appeal tribunal indicated that, had it concluded the employee refused a bona fide offer of work, it would have found he had good cause to do so, based upon his strained relationship with the employer and the pending wage dispute. The commission disagrees. Although the employee stated that he was afraid to go back to work for the employer because he did not want to be harassed, the employer indicated that, once it became aware of the employee's allegations, it talked to the alleged harasser about his conduct and reassigned him to a marketing position, where he would no longer be working with the employee. Thus, there is no reason to believe that the employee would have been subjected to harassment had he returned to work for the employer.

With regard to the employee's wage claim, this involved wages paid for a discrete period of time during his prior employment, and the commission sees no reason to believe there would be ongoing wage issues should the employee decide to return to work for the employer. Moreover, it is less than clear from the evidence in the record whether the employee would prevail on his wage claim and, as of the date of the hearing, the matter had not been finally resolved.

Finally, the wages, hours and other conditions of the work the employee was recalled to by the employer were not substantially less favorable to him that those prevailing for similar work in the employee's labor market area, and the employee as a claimant for unemployment benefits, was not for any other reason justified in failing to accept a recall to that work.

The commission therefore finds that in week 34 of 2003 the employee failed without good cause to return to work with a former employer that recalled him within 52 weeks after having last worked for that employer, within the meaning of Wis. Stat. § 108.04(8)(c).

The commission further finds that the employee was paid benefits in weeks 34 through 44 of 2003 in the total amount of $3,619, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is modified and, as modified, is reversed. Accordingly, the employee is ineligible for benefits beginning in week 34 of 2003 and until four 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 4 times his weekly benefit rate which would have been paid had the failure not occurred. This decision results in an overpayment of $3,619 which is included in the overpayment amount set forth by another commission decision dated and mailed November 26, 2003.

Dated and mailed July 8, 2004
pinkoro . urr : 164 : 2  AA 110  AA 115  SW 830.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not the result of a differing assessment of witness credibility.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/07/12