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


CARLA R HARRIS, Employe

RACINE UNIFIED SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98604085RC


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about five months as a social worker for the employer, a school district. Her last day of work was June 3, 1997 (week 24).

The issue to be determined is whether the employe failed, without good cause, to return to work with a former employer that recalled her within 52 weeks after the employe last worked for that employer.

Section 108.04 (8)(c) of the Wisconsin statutes provides as follows:

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

The employer offered the employe work as a substitute teacher in week 19 of 1998, the calendar week ending May 9. The employer sent the employe a letter on May 7, 1998 by certified mail, and dated May 4, 1998, indicating that the employer had substitute positions available on a daily basis. The post office again tried to deliver the letter on May 13 and May 23. It was returned to the employer unclaimed and received by the employer on June 2, 1998.

The employe testified that she was not living at the address to which the letter had been sent. However, the employe's unemployment checks for weeks 18, 19 and 20 were mailed to the same address that the certified letter was sent. The employe received and cashed her checks. The employe did not change her address with the post office in May and did not change her address with the department until sometime in June. In addition, the employe's testimony was inconsistent with regard to when she moved from her apartment. Moreover, the employe never contacted the employer with regard to work.

The commission concludes that the employe was simply avoiding the employer's letter. The employe's avoidance of the letter amounted to a failure to accept work which paid up to $14.39 per hour. In addition, the wages, hours (including arrangement and number), and other conditions of the work offered to the employe were not substantially less favorable to the employe than those prevailing for similar work in the employe's labor market area; and the employe, as a claimant for unemployment benefits, was not for any other reason justified in failing to accept the work.

The commission therefore finds that in week 19 of 1998, the employe failed without good cause, to return to work with a former employer that had recalled the employe within 52 weeks after having last worked for that employer, within the meaning of Wis. Stat. § 108.04(c). The commission further finds that the employe was paid benefits in weeks 19 through 22 of 1998, totaling $884, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund. The commission further finds that waiver of benefit recovery is not required under Wis. Stat.

§ 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 19 of 1998 and until four weeks have elapsed since the end of the week in which the failure occurred and she has earned wages in covered employment performed after the week of the failure equaling at least four times her weekly benefit rate which would have been paid had the failure not occurred. The employe is required to repay the sum of $884 to the Unemployment Reserve Fund.

Dated and mailed: January 20, 1999
harrica.urr : 145 : 3  AA 115

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He indicated that the employe testified credibility about her circumstances at the time the letter offering work was sent, and that she was living with her mother at the time of the hearing. He also reported that nothing in the employe's demeanor caused him to doubt her credibility, and he noted she never received the certified letter. However, the commission disagrees with the ALJ's credibility determination for the reasons stated in its decision.

NOTE: For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.


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