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

MICHAEL D WILLKOMM, Employee

SOUTHWEST LOGISTICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11005031MD


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 worked for approximately 10 months as an "over-the-road" driver for the employer, a trucking company. His last day of work was on September 14, 2011 (week 38), when he quit.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The employee began working for the employer after he was laid off from his previous employer, Ironworkers Local 8, a building trade union. The employee notified the employer at issue at the time of his hire that he would be returning to work for the union immediately upon being recalled. In or around September 2011, the employee accepted a recall from the union and notified the employer at issue that he was quitting. He never returned to work for the employer at issue after September 14, 2011.

If an employee voluntarily terminates employment, Wis. Stat. § 108.04(7)(a) provides that the employee's eligibility for benefits will be suspended until four weeks have passed since the week of quitting and the employee has earned wages in covered employment equaling at least four times his or her weekly benefit rate, unless the quitting falls within a specific statutory exception.

One such exception is set forth in Wis. Stat. § 108.04(7)(d) which provides:

Paragraph (a) does not apply if the department determines that the employee terminated his or her work to accept a recall to work for a former employer within 52 weeks after having last worked for such employer.

The record supports a finding that the employee accepted the recall within 52 weeks after having last worked for the union. As such, the employee satisfied the above-referenced statutory exception.

The commission therefore finds that, in week 38 of 2011, the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(d).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 38 of 2011, if otherwise qualified.

Dated and mailed February 20, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner


willkmi . urr : 102 : 5

NOTE: The commission did not consult with the ALJ prior to reversing the appeal tribunal decision. The reversal is based upon a differing legal conclusion rather than differing credibility.

 


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uploaded 2012/04/27