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

THOMAS A WERLEIN, Employee

CITY OF EAU CLAIRE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04201986EC


On August 17, 2004, the Department of Workforce Development issued an initial determination which held that, in week 30 of 2004, the employee was with due notice called on by his current employer to perform work actually available but was unavailable for such work. The employee filed a timely request for hearing on the adverse determination, and hearing was held on September 7, 2004 before a department administrative law judge. On September 10, 2004, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter is now ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee continues to work as a part-time bus driver for the transit system of the employer, a municipality. The issue in this case is whether, in week 30 of 2004, the employee was with due notice called on by his current employer to perform work actually available. The commission concludes that he was not, and so reverses the appeal tribunal decision.

Wisconsin Stat. § 108.04(1)(a) provides as follows:

(a) An employee's eligibility for benefits shall be reduced for any week in which the employee is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the department shall treat the amount that the employee would have earned as wages for that week in such available work as wages earned by the employee and shall apply the method specified in s. 108.05(3)(a) to compute the benefits payable to the employee. The department shall estimate wages that an employee would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employee.

During the week ending July 24, 2004, the employee worked and earned wages of $314.43. On July 21, 2004, the employer placed a telephone call to the employee's residence to inform him that he could work a shift that day starting at 4:15 p.m. and concluding at 10:27 p.m. The call was placed pursuant to the employer's work policies which make such work available to drivers on the basis of seniority. The assignment is not mandatory until the employer reaches the bottom of its seniority list and the shift has still not been filled. At that point, the assignment becomes mandatory for the least senior driver the employer is able to reach by telephone. The employee's telephone records show that this call came to the employee's residence at about 3:10 p.m. that day. He was apparently not home or else some other consideration prevented him from receiving the call. In any case, the employer did not succeed in actually making this work assignment.

On July 22, the employer had another assignment for the employee running from 6:15 p.m. to 10:27 p.m. Again, the employer placed a telephone call to the employee's residence at about 1:30 p.m. Again, the employee did not actually receive the call and so the employer was not actually able to make this work assignment.

The statute requires due notice by an employer before an employee may be disqualified from unemployment insurance eligibility for the week in question. For the following reasons, the commission concludes that such notice was not given in this case. First, the unemployment insurance law does not require employees to stay by the telephones on the chance their employers might call them for additional shifts. Second, the record does not indicate that the individuals in the employee's job category were required to wait by the telephone for last-minute assignments. Nor is there any evidence in the record to the effect that part-time drivers had an obligation to check in with the employer to see whether there were assignments for them. Third, assignment procedures for the part-time drivers include the provision that normally they will be given at least 24 hours' notice when additional work hours are required. Given these factors, the commission cannot conclude, in the narrow circumstances of this case, that the telephone calls unanswered constitute due notice of work available, within the meaning of Wis. Stat. § 108.04(1)(a).

The commission therefore finds that, in week 30 of 2004, the employee was not with due notice called on by the employer to report for work actually available within that week.

DECISION

The appeal tribunal decision is reversed. Accordingly, there is no benefit reduction for week 30 of 2004.

Dated and mailed May 24, 2005
werleth2 . urr : 105 : 4  AA 110

/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 before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, for the undisputed reasons stated in appeal tribunal decision, the commission concludes as a matter of law that the employer's telephone calls to the employee were insufficient to constitute due notice under the statute.

 


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