JASON G NOGALSKI, Employee

JOHN FAIKEL MASON CONTRACTOR 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 makes the following:

The employee performed masonry work for the employer, a mason contracting business. He last worked for the employer in December of 2008.

On May 25 and 26, 2009 (week 22), the employer attempted to contact the employee by telephone about performing some additional masonry work for it. The employer left a message for the employee that he had a couple days of work for the next two or three weeks, and possibly more. The employee did not listen to the messages because he accidentally deleted them. The employer normally used the telephone to notify the employee of work that was available.

The employee would have earned $20 per hour performing the work. For similar work in the employer's labor market area, the point of pay at which 75 percent of workers earn more and 25 percent of workers earn less is $17.45. The issue to be decided is whether the employee failed to accept an offer of work or failed to return to work when recalled, without good cause.

Wis. Stat. § 108.04(8)(a) provides in part:

(a) If an employee fails, without good cause, to accept suitable work when offered, the employee is ineligible to receive benefits until 4 weeks have elapsed since the end of the week in which the failure occurs and the employee earns wages after the week in which the failure occurs equal to at least 4 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government.

Wis. Stat. § 108.04(8)(c) provides in part:

(c) If an employee fails, without good cause, to return to work with a former employer that recalls the employee within 52 weeks after the employee last worked for that employer, the employee is ineligible to receive benefits until 4 weeks have elapsed since the end of the week in which the failure occurs and the employee earns wages after the week in which the failure occurs equal to at least 4 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. If an employee receives actual notice of a recall to work, par. (a) applies in lieu of this paragraph.

Under the statutes, where an employee has been discharged or indefinitely laid off by an employer, and within the following 52 weeks such employer notifies him to return to work, using reasonable means to bring such notice of recall to his attention (e.g., mail sent to the employee's last-known address, a telephone call to a person at his last-known telephone number, or any other such reasonable means) such employee has been duly recalled to work irrespective of whether such notice was actually brought to his attention.

In this case, the employee learned on June 1, from the department, that the employer had offered him work. The employee on that day called the employer and left a message on the employer's cellular phone and on his home phone asking the employer to call him back. The employee also left messages with the employer's father. The employer at the hearing indicated that he did not respond to the employee's messages because "the work was being done by me and my dad." According to the employer's testimony the work was for the week of May 25 as well as the week of June 1, and then possibly the week of June 8 and further. The work would still have been available when the employee called on June 1, but the employer did not respond to the messages because there was no work. This leads the commission to conclude that the employer's offer of work was not bona fide.

The commission therefore finds that in week 22 of 2009, the employee did not fail to return to work with a former employer that had recalled the employee within 52 weeks of the employee's last work for the employer, within the meaning of Wis. Stat. § 108.04(8)(c).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed January 22, 2010
nogalja . urr : 145 : 5 SW 830.05 SW 845

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on a differing assessment of witness credibility but rather, because it reached a different conclusion when it applied the law to the facts found by the ALJ and the undisputed facts in the record.

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uploaded 2010/01/26