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

JAVIER M MEDINA, Employee

SANFELIPPO AUTO REPAIR INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603531WK


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 was a maintenance worker for the employer, a sod farm. The employee last worked at the end of October of 2005 as the result of a seasonal layoff. The employee performed work for the employer for about 10 years.

During the week of April 9, 2006, the employer sent the employee a letter informing him to return to work on April 25, 2006 (week 17). The employee did not respond to the employer's letter. Instead, the employee's son reported to work in his father's place, informing the employer that the employee was working in Mexico and would not be working for the employer during the 2006, season.

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. The fact that the employer sent the employee a letter requesting that he return to work on April 25, 2006, combined with the fact that the employee's son reported to work in his father's place gives rise to the inference that the employee received the employer's recall letter. Further, 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. See, Hoffman v. Milwaukee Valve Co. Inc. (LIRC, August 13, 1990). 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). Therefore, in either scenario the employee would have been found to have failed to accept work
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.

Finally, there is nothing in the record to suggest that the wages, hours and other conditions of the work the employee was recalled to by the employer were 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 17 of 2006 the employee refused a bona fide offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a).
The benefit check for week 17 of 2006 was forfeited. Since benefits are now denied for this week, it cannot be applied to the forfeiture.

DECISION

The decision of the administrative law judge is modified as to the week of issue and as modified is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2006 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. The benefit check for week 17 of 2006 was forfeited. Since benefits are now denied for this week, it cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $48.

Dated and mailed November 17, 2006
medinja . urr : 145 : 1  SW 830.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not consult with the ALJ about witness credibility and demeanor prior to reversing his decision. The commission does not reverse the ALJ's decision based on a different assessment of witness credibility and demeanor. Rather, the commission reverses the ALJ's decision as a matter of law.


cc: Sanfelippo Auto Repair (Milwaukee, Wisconsin)


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uploaded 2006/11/20