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

NORMAN FITZGERALD, Employee

EXPEDITED FREIGHT SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04606290RC


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 ineligible for benefits beginning in week 20 of 2004 and until four weeks have elapsed since the end of the week in which the failure occurred and the employee has earned wages in covered employment performed after the week of the failure equaling at least four times his weekly benefit rate which would have been paid had the failure not occurred. The employee is required to repay the sum of $2,632 to the Unemployment Reserve Fund.

Dated and mailed November 30, 2004
fitzgno . usd : 115 : 1   AA 110

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked more than three years as a driver for the employer, a trucking firm. His last day of work was March 13, 2004.

On or before May 13, 2004, the employer decided to offer the employee the opportunity to return to his former position. To this end, the employer telephoned the employee, at the last number he had provided the employer, 12 times from May 13 through 17, and left messages with a woman who identified herself as the employee's wife. The employee did not return any of these calls. As a result, the employer sent a certified letter on May 18, 2004, (exhibit #2, page 1) to the last address the employee had provided the employer, which the employee acknowledges has been his address for the past two years, offering the employee his former position and requiring him to contact the employer within 14 days. Postal records (exhibit #2, pages 2 and 3) indicate that attempts were made to deliver this letter, and notices left, on May 19 and 24, and that the letter was returned to the employer unclaimed on June 3, 2004. The employer again attempted to contact the employee by telephone on May 28, leaving a message with a person who identified himself as the employee's son Tony, and on June 2. The employer sent a first class letter to the employee's last address on June 2 (exhibit #3), detailing the attempts it had made to the contact the employee, and its conclusion that he was unwilling to accept full time employment with the employer.

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); Watkins v. Cornwell Personnel Associates Ltd., UI Hearing No. 03600848MW (LIRC Aug. 13, 2003)(attempting to contact employee at last telephone number of record and leaving messages, and sending certified letter to employee's mailing address constituted reasonable effort by employer to get notice of recall to employee).

Under the circumstances present here, telephoning the employee at the telephone number he had provided the employer and leaving 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.

The employee contends that the telephone number he had provided the employer was the number for his wife's cell phone which she took with her when they separated on March 16, 2004. However, department records show that this is the same number (262-498-7389) he provided the department for his June 8, 2004, phone interview by the department investigator, and his current number on record with the department.



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