JAMES B GILMORE , Employee

MIDWEST ENGINEERING SERVICES 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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits as of week 4 of 2009, if he is otherwise qualified.

Dated and mailed April 23, 2009
gilmoja : 135 : 5  AA 110

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The issue here, is whether the employee was "duly recalled" by his former employer to return to work within the meaning of Wis. Stat. § 108.04(8)(c). An individual is duly recalled when a former employer has followed the contractual procedure or has made a reasonable effort to get notice of the recall to the employee, but was still unable to contact the employee. In the absence of a contractual procedure, which is what existed here, notifying an employee by certified letter is a reasonable method for notifying a worker that work is available. See Norman Fitzgerald v. Expedited Freights Systems, Inc., UI Hearing Dec. No. 04606290RC (November 30, 2004); Paris Robinson v. P.A. Staffing Service, Inc., UI Hearing Dec. No. 99605379MW (LIRC October 28, 1999).

Here, the employer attempted to recall the employee by leaving telephone messages at the employee's last known residence and placing a piece of cardboard, with a written message on it regarding available work, on a windshield of a car presumed to be the employee's car. Although the employer argues its attempts to recall the employee were reasonable and should constitute notification of the recall, the most reasonable and sensible way to have communicated with the employee was to have sent a certified letter to the employee's last known address. Based on the facts found, it can not be held that the employee was duly recalled to return to work with his former employer, within the meaning of Wis. Stat. § 108.04(8)(c).

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uploaded 2009/05/05