DOUGLAS P BRENNER, Employee
DANES FARMS INC, Employer
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, except that it makes the following modifications:
1. The 14th paragraph [relating to the employee's layoff from an apprenticeship construction job) of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is deleted.
2. The first two sentences of the 15th paragraph [relating to the employee's credibility] of the FINDINGS OF FACT and CONCLUSIONS OF LAW are deleted.
3. Each reference to an overpayment amount of $3,195, is changed to $3,550.
The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 4 of 2007, 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 $3,550 to the Unemployment Reserve Fund. The labor market evidence upon which the administrative law judge relied is marked as exhibit no. 9 and received into the hearing record.
Dated and mailed July 20, 2007
brenndo . umd : 115 : 1 AA 110
PC 729
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On March 22, 2006, the employer's owner requested that each of his drivers acknowledge receipt of a warning by signing a copy of it. This warning stated that drivers were not permitted to call each other on their cell phones while they were driving on company time; if this were a problem, the driver should leave his cell phone at home; and drivers who did not comply would "chance a termination."
It is undisputed that the employment relationship ended when the employee refused to sign a copy of this warning.
The employee claimed and received benefits as a result of this separation.
The employee testified that, in June of 2006, he began a construction apprenticeship program; was laid off for the season on September 8; and, as of April 4, 2007, expected to be returned from layoff "as soon as the ground dried up."
Department records indicate that the employee initiated a claim based on this layoff on September 18, 2006 (week 37), and claimed benefits based on this layoff through week 13 of 2007, before they were suspended.
In January of 2007, the employer attempted to recall the employee to his former trucker position.
The employer phoned the employee at 6:07 p.m. on January 23 to offer him this position. The employer testified that the employee did not answer the call so he left a voice mail message. The employee's cell phone record (exhibit #8) shows that the employee called his voice mail at 6:09 p.m. on January 23. The employee testified that he did not receive a voice mail message from the employer at that time. The administrative law judge did not credit the employee's testimony to this effect, and there is no persuasive reason to overturn this credibility determination.
The employer, after waiting for a return call but not receiving one, crafted and sent a certified letter to the employee's correct mailing address. This letter (exhibit no. 6) offered the employee, effective immediately, the same job he had previously performed for the employer.
The notations by the postal service on the envelope in which this certified letter was sent indicate that it was mailed on January 29; delivery was attempted on January 30 and February 6; and it was returned to the employer unclaimed on February 16.
Wisconsin Statutes § 108.04(8)(c), Stats., provides that an employee is ineligible for benefits if he fails without good cause to return to work upon recall by a former employer within 52 weeks of a separation. See Hoffman v. Milwaukee Valve Co., Inc., UI Hearing No. 90-001317MD (LIRC Aug. 13, 1990).
This statutory provision does not require actual notice of recall, but instead that the former employee be "duly recalled." A former employee is duly recalled when the employer has made a reasonable effort to get notice of recall to him but was unable to contact him. See, Johnnies v. Total Home & Office Care LLC, UI Hearing No. 06604101MD (LIRC Oct. 27, 2006); Fitzgerald v. Expedited Freight Systems, Inc., UI Hearing No. 04606290RC (LIRC Nov. 30, 2004); 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).
Here, the employer not only phoned the employee and left a voice mail message, but sent a certified letter to the employee's mailing address. As a result, the employee was duly recalled to work by the employer in week 4 of 2007.
The next question then is whether the employee would have had good cause for declining this offer of work.
The employee would have had good cause if the wages, hours, or other conditions of work offered by the employer were substantially less favorable than those prevailing in the locality (Wis. Stat. 108.04 (9)(b)); or if the work was at a lower grade of skill or significantly lower rate of pay than applied to the employee on one or more recent jobs (Wis. Stat. § 108.04(8)(d)).
Here, one of the employee's more recent jobs was performing the duties offered to him by the employer. Moreover, the expert labor market evidence (1) relied upon by the administrative law judge shows, as she found, that his rate of pay (35 cents per mile) was greater than that at the lowest quartile (30 cents per mile).
The employee also asserts that the fact he has now moved to Hartford from his former residence in New Holstein would provide good cause. However, expert labor market evidence shows that it is not uncommon in the over-the-road trucking industry for drivers to be located an hour or more from their employer's headquarters. In fact, the employer testified that he had drivers who resided in Menomonee and Green Bay, and that a driver only has to make the trip from his residence to the employer's headquarters once each week because the remainder of the week they are on the road.
The conditions of the work offered by the employer would not provide good cause.
Another question is whether the circumstances surrounding the employee's separation from the employer would provide good cause. It is undisputed that the employment relationship ended when the employee refused to sign the March 22, 2006, warning relating to the use of cell phones when driving while on work status. This is a work condition which the employer was reasonably justified in regulating, particularly given his legitimate concern that cell phone use between drivers was excessive and unsafe. The employee argues that drivers contacted each other for directions in carrying out their work responsibilities. However, presumably, such information could be obtained from the dispatcher as well. The fact that the employee objected to the warning and this circumstance strained the formerly friendly relationship between the employee and employer, as well as the fact that the employer would be expected to impose this requirement upon the employee were he to return to work, would not be sufficient to constitute good cause. See, Pinkos v. Burgess Car & Truck Service Center, Inc., UI Hearing No. 03610313MW (LIRC July 8, 2004)(fact that employer had previously appealed employee's eligibility for UI benefits, owner's son-in-law called employee disrespectful names twice during prior employment, and wage claim issue had arisen, did not give employee good cause to refuse offer of new work form former employer).
There is no evidence that the employee would have had to leave the apprenticeship program in which he had been participating, and for which he asserts he had been on seasonal layoff for a period of seven months, in order to accept the employer's recall offer.
In his petition, the employee asserts that the administrative law judge (ALJ) was biased against him, and demonstrated this bias by refusing to permit him to complete his answers without interruption.
However, the commission has reviewed the recording of the hearing and found the ALJ to be professional and impartial. She did sternly reprimand the employee when he continued to make inappropriate gestures and noises during the employer's testimony after she had previously warned him about this conduct. Her instructions to the employee were reasonably targeted to address testimony that was unresponsive, irrelevant, or unduly repetitious, and she gave the same instructions to the employer when his testimony so justified. In addition, the ALJ carefully assured that both parties had an opportunity to present their case, and did not end the hearing until both had indicated they had nothing else to offer. As a result, granting the employee's request for a new hearing before a different ALJ is not merited.
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]