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


MICHAEL L DARLING, Employe

MICHELS PIPELINE CONST INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98400898AP


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a heavy equipment operator on a seasonal basis for about 23 years for the employer, a construction company. He worked out of state about 80 percent of the time. He would return a few days after every ten-day period out of state. The employer furnished his transportation and lodging. His last day of work for the employer was December 20, 1997, when he was laid off for the season. The employer's vice president informed the employe at that time that he could expect to be recalled roughly in March. He was notified on February 20, 1998, of his recall, presumably to the same position, on either March 2 or March 3, 1998 (week 10), to a Virginia work site. He declined the recall because he was tired of traveling and wanted to spend more time with his family. After refusing the recall, another employing unit offered him employment if all its workers were recalled first. The position had not materialized as of the hearing date, and the employe had looked for no other work.

The issue to be decided is whether the employe had good cause for failing to accept an offer of work and whether the employe was otherwise able to work and available for work, whether the employe's separation from employment was a quitting, a discharge for misconduct, or a suspension or termination because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer and whether the employe was able to work and available for work.

In Hemstock Concrete Products v. LIRC, 127 Wis. 2d 437 (Ct. App. 1985), the court determined that the employment relationship continued where a worker has a definite expectation of being recalled at a date that was definitely predictable. The court held that such a situation was not an indefinite layoff. In the present case, the employe had worked for this employer for 23 years and had been laid off in the winter and recalled a few months later. This pattern was constant enough that his work search was waived by the department. In Hemstock, the court held that a "specific recall date is not necessary to reestablish an employment relationship if that relationship was never severed in the first instance. There is a presumption that a layoff severs the employment relationship, but both the commission and the court have recognized that the presumption may be rebutted by `evidence that at the time of layoff there existed an assurance, expressed or clearly implied by circumstances, that work and wages would be resumed at an ascertainable time in the not too distant future.'", Hemstock at p. 442, citing Hermann v. Miller Brewing Company, Hearing No. 18852, Decision No. 54-A-38 (Industrial Commission of Wisconsin, December 18, 1953) quoted with approval in A.O. Smith, 88 Wis. 2d at 267, 276 N.W.2d at 282 (1979).

In the present case the employe had worked for the employer for 23 years, and been laid off in the winter and recalled a few months later. This was such a reliable occurrence that the department waived the employe's work search, and the employe conducted no search for work. Under the circumstances, the commission must conclude that the employe's actions, in refusing to return to his position, were inconsistent with the continuation of an employment relationship, and for unemployment purposes, amounted to a quitting.

The employe quit his job with the employer because he wished to spend more time with his family. While the employe had valid personal reasons for quitting, his quitting did not fall within one of the exceptions in the statutes which would allow for immediate benefit payment.

The commission therefore finds that in week 10 of 1998 the employe terminated his work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a), and that his quitting was not for any reason constituting an exception to that section.

The commission further finds that the employe was paid benefits in the amount of $290 per week for each of weeks 10 through 16 of 1998 amounting to a total of $2,030, for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.


DECISION

The decision of the administrative law judge is modified to conform to the foregoing, and as modified is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 10 of 1998, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $2,030 to the Unemployment Reserve Fund.

Dated and mailed July 30, 1998
darlimi.urr : 145 : 7 SW 844 VL 1007.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ with regard to witness credibility and demeanor but rather reached a different legal conclusion when applying the law to the facts found by the ALJ.


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