STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
In the matter of the
unemployment benefit claim of
DONAVIN L HOFFMAN, Employe
Involving the account of
MILWAUKEE VALVE CO INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-001317MD
The Initial Determination of the Department of Industry, Labor and Human Relations held that the employe did not have good cause for failing to return to work for an employer when duly recalled. As a result, benefits were denied pending requalification under sec. 108.04(8)(c), Stats. The employe filed a timely appeal and a hearing was held before an Appeal Tribunal. The Appeal Tribunal reversed the Initial Determination. He held that the employe never received an offer of work and therefore did not fail to accept a suitable offer of work, within the meaning of sec. 108.04(8)(a), Stats. The Department, pursuant to sec. 108.09(6)(a), Stats., petitioned the Commission for a review of the Appeal Tribunal Decision.
Based on the applicable law, records and evidence in this case, and after consultation with the Appeal Tribunal regarding the credibility and demeanor of the witnesses, the Commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked as a furnace ladle repairman for the employer, a valve manufacturer. He quit his job on May 23, 1989 (week 21), to take a job with another employing unit. The issue in this case is whether actual notice, or only "due notice," is required with respect to an offer of work by the employer to the employe following his termination.
When it became aware that the employe had been laid off from his new job, the employer sent a letter to the employe which offered him work beginning January 31, 1990 (week 5). The letter was dated January 26, 1990 (week 4) and sent by first class mail to the home of the employe's parents, the address he had last given the employer. However, about the time the letter should have arrived, the employe left his parent's home in Mazomanie, Wisconsin, and moved to Cross Plains, Wisconsin. The employe contends he never received the offer of work.
The employe's testimony indicates that his relationship with his parents may have been strained, and that he did not check with them about his mail on a daily basis. However, the employe was still using his parent's address as his mailing address as of the date of the hearing. While it is not clear whether the letter containing the offer of work was ever delivered to the home of the employe's parents, the commission is satisfied both that the letter was sent and that the employe never received it.
Section 108.04(8)(c), Stats., provides that an employe is ineligible for benefits if he or she fails to return to work upon recall by a former employer within 52 weeks of the separation. Because the employe had quit his job with the employer, the subsequent offer of work for the employer arguably was not a "recall" in the sense of a recall from a layoff. At any rate, the Appeal Tribunal did not apply sec 108.04(8)(c), Stats., in this case. Instead, the Appeal Tribunal applied sec. 108.04(8)(a), Stats., which deals with offers of work more generally. That section requires an employer to provide "actual notice" of an offer of work. Because the employe did not receive actual notice of an offer of work from the employer, the appeal tribunal concluded that he was not disqualified under sec. 108.04(8)(a), Stats.
The Commission believes, however that sec. 108.04(8)(c), Stats., applies in this case. That section refers to recall by a former employer; it is not specifically limited to a recall from a definite or indefinite layoff. Further, sec. 108.04(8)(c), Stats., applies only when an employe receives something less than the actual notice contemplated under sec. 108.04(8)(c), Stats. Consequently, the employer in this case needed only to provide "due notice" of its job offer to the employe.
The Commission has previously held that a recall letter sent to an employe's last- known address by first class mail constitutes "due notice." The commission acknowledges that an employe who has quit an employer is less likely to keep that employer informed of address changes than an employe who has been laid off. However, the literal wording of sec. 108.04(8)(c), Stats., applies to the employe in this case and the recall letter was addressed to what was the employe's mailing address when the job offer was sent (and for a substantial period of time thereafter).
An employe who does not receive a recall letter because he has actually changed his mailing address may have "good cause" under sec. 108.04(8)(c), Stats., for failing to respond to a recall notice from a former employer. However, that is not the case here. The Commission is persuaded that the employe was provided due notice of a recall by a former employer within 52 weeks after his last day with that employer and that he had no good cause to refuse the job offer. He is ineligible for benefits beginning with the week for which work was offered, or week 5 of 1990.
The wages, hours (including arrangement and number), and other conditions of the work the employe was recalled to by the employer were not substantially less favorable to him 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 a recall to that work.
The Commission therefore finds that in week 5 of 1990, 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 sec. 108.04(8)(c), Stats.
The Commission further finds that the employe was paid benefits in the amount of $155.00 per week for each of weeks 5 through 7 of 1990, amounting to a total of $465.00, for which he was not eligible and to which he was not entitled, within the meaning of sec. 108.03(1), Stats. Pursuant to sec. 108.22(8)(a), Stats., he is required to repay such sum to the Unemployment Reserve Fund.
The Appeal Tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 5 of 1990, and until seven weeks have elapsed since the end of the week in which the failure occurred and he has earned wages in covered employment performed after the week of the failure equaling at least 14 times his weekly benefit rate which would have been paid had the failure not occurred. He is required to repay the sum of $465.00 to the Unemployment Reserve Fund.
Dated and mailed August 13, 1990
101 - CD1000 SW 830
/s/ Kevin C. Potter, Chairman
Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
Although the Commission conferred with the appeal tribunal who conducted the hearing, it does not reverse his decision because of a different assessment of the credibility of the witnesses. See Transamerica Ins. Co. v. ILHR Dept.., 54 Wis. 2d 272 (1972). Instead, the Commission reaches a different result when applying the law to essentially the same set of facts as found by the appeal tribunal.
The Appeal Tribunal stated that he found the employe essentially credible when he said he did not receive the letter. He also believed that the employer's witness was credible when she said she mailed it. The Appeal Tribunal further noted that he believed mail delivery went to the home of the employe's parents in the normal course of delivery and that they were not deliberately thwarting the employe's mail. However, because the employe was working at a car wash at the time the recall letter was mailed, the appeal tribunal believed that the employe would have returned to the employer had he known there was an opening for him. However, because this case involves a recall requiring only due notice under sec 108.04(8)(c), Stats., whether the employe actually received the letter is not determinative.
cc: MILWAUKEE VALVE COMPANY
MARY M STEVENS
BUREAU OF LEGAL AFFAIRS
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