STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
TIMOTHY J O'KEEFE, Employe
ANR ADVANCE TRANSPORTATION CO INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603648MW
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.
DECISION
The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits in these weeks, if otherwise qualified.
Dated and mailed: January 29, 1999
okeefti.usd : 178 : 7 AA 110
/s/ David B. Falstad, Chairman
Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
In its petition for commission review, the employer argues that the ALJ erred by finding the lack of actual notice of work gave the employe good cause to refuse it and that the ALJ misinterpreted the collective bargaining agreement which governs the relationship between the parties to require written notice of work available. The commission has carefully reviewed the relevant law and agrees with the ALJ's conclusions that the employe is eligible for benefits in these weeks.
The Wisconsin court of appeals stated, "A specific recall date is not necessary to reestablish an employment relationship if that relationship was never severed in the first instance. There is a presumption that a layoff severs the employment relationship, but both the commission and the court have recognized that the presumption may be rebutted by "evidence that at the time of layoff there existed an assurance, expressed or clearly implied by circumstances, that work and wages would be resumed at an ascertainable time in the not too distant future." Hermann v. Miller Brewing Company, Hearing No. 18852, Decision No. 54-A-38 (Industrial Commission of Wisconsin, Dec. 18, 1953), quoted with approval in A. O. Smith, 88 Wis. 2d at 267, 276 N.W.2d at 282. The distinction between indefinite and temporary layoffs was recognized in A. O. Smith. There, the court commented on the facts of a Michigan case - where the employees understood that they would be recalled as soon as materials necessary for the resumption of production became available - stating that under such circumstances, "under Wisconsin law it would be clear that the. . . workers were not in an indefinite-layoff status." Id. at 269, 276 N.W.2d at 283. Hemstock Concrete Products v. LIRC, 127 Wis. 2d 437, 380 N.W.2d 87 (Ct. App. 1985)
The layoff letter notifying the employe of his layoff simply states "You are hereby notified of layoff effective December 19, 1997 until further notice. We trust this to be temporary; however, at this time it is impossible to predict." There is no evidence in this record of any assurance, either expressed or clearly implied by circumstances, that work and wages would be resumed at an ascertainable time. This relationship did not continue during the lay off and therefore these offers did not constitute a calling upon by a current employing unit. Therefore, there can be no due notice of work available.
The remaining issue is whether the employe was offered suitable work or recalled by an employer within 52 weeks of the end of his employment with it. In this case, with the exception of week 10, the employer does not even assert that actual contact was made with the employe. Instead, phone messages were left on the roommate's answering machine. As for week 10, the employe does not recall talking to a representative of the employer in that week and the hearsay affidavit provided by the employer states only that the employe was called to offer him work, not that he refused work. Moreover, the employer's business records, which are not hearsay, do not state that the employe refused work on that date. The commission agrees with the ALJ's conclusion that no actual contact was established in week 10 either and handled week 10 like all the other weeks.
In cases such as these in which an individual is duly recalled to work by a former employer but no actual contact is made offering that work, the issue is resolved under Wis. Stat. § 108.04(8)(c), which provides for disqualification for a duly recalled former employe. The department finds an individual was duly recalled when the employer has followed the contractual procedure or has made a reasonable effort to get notice of the recall to the claimant but was unable to contact the claimant.
In this case, a formal recall under the employer's contract provided for a certified letter and a week's notice. The employer followed this procedure in May and the employe returned to work at that time. Prior to that, the employer used its on-call method to notify the employe of occasional work. The method provided for in the contract for notifying the employe of occasional work was a phone call made at various times of day for various shifts throughout the day and is described above. The employe was given a minimum two hours notice prior to the start of a shift the same day. The net effect was that unless the employe happened to be fortuitously next to the phone when a call came in, he missed his opportunity to work that day. The employer had no reasonable provision requiring the employe to be available for a call during a certain short period each day. Providing a single call to the employe on an erratic or random basis of occasional work to begin almost immediately does not constitute a reasonable effort to get notice of a recall to the claimant as provided by the statute. The ALJ allowed benefits on that basis. The commission affirms that decision.
cc: ROBERT G TURCOTT
ANR ADVANCE TRANSPORTATION
ATTORNEY JOHN E MURRAY
KRUKOWSKI & COSTELLO
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