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

JOHN C ENGEN, Employee

COLUMBIA FOREST PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05202082RH


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee has worked since 1980, most recently as a chip operator for the employer, a veneer wood product manufacturer. He filed a claim for unemployment benefits during the calendar week ending September 24, 2005 (week 39).

The issue to be decided is whether the employee was with due notice called on by the current employing unit to report for work actually available during week 39 of 2005, whether the employee was available for that work and the amount of wages the employee would have earned in that week by performing all of the available work.

The employee worked 32 hours during the calendar week ending September 24, 2005 (week 39) and earned $366.72. During week 39 of 2005, the employee's supervisor informed the employee that there was enough work for one person on Friday, September 23, 2005. The supervisor did not offer the employee the work, but mentioned that the work was available for one person.

The commission therefore finds that in week 39 of 2005, the employee was not with due notice called on by his current employing unit to report for work actually available within the week, within the meaning of Wis. Stat. § 108.04(1)(a).


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's benefits will not be reduced by including any additional amounts for wages that the employee might have earned on September 23, 2005. The employee is not required to repay the sum of $62 to the Unemployment Reserve Fund.

Dated and mailed February 21, 2006
engenjo . urr : 145 : 1    AA 110

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but reverses the ALJ's decision because it reached a different conclusion when applying the law to the facts in the record. The employee's supervisor, who allegedly offered the employee work, did not testify at the hearing. The employee's testimony was that he was not aware of the employer's new policy and believed that the supervisor did not offer him the work but mentioned it to see if the employee might wish to volunteer for it.


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uploaded 2006/02/28