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


PARIS ROBINSON, Employe

P A STAFFING SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605379MW


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 employe worked at a series of different assignments for the employer, a temporary staffing service. She was last assigned work from August of 1998 until January 7, 1999, her last day, as a packager at $9 per hour. She was terminated by the employer's client.

Subsequently, the employer intended to rehire her for a position requiring sweeping duties as an attendant during first-shift hours at $6 per hour. Since the employer was unable to reach her at her former telephone number, the employer mailed a letter to her last-known address dated June 24, 1999. However, that letter was returned by the post office as undelivered.

The employer alleged that the employe failed to accept an offer of work without good cause. However, the employe never received the letter, nor was she aware that the employer was attempting to reach her in order to offer her work. Therefore, she did not fail to accept an offer of work.

The statutes further provide in Wis. Stat. § 108.04(8)(c) for the recall of a former employe within 52 weeks after he or she last worked for the employer where there is no actual notice of recall received by the employe. The employer normally called the employe to offer her work. However, in about May of 1999, her phone number was disconnected. The employer therefore sent her a certified letter, offering her work. In Donavan L. Hoffman v. Milwaukee Valve Co. Inc., (LIRC, August 13, 1990), the commission held that:

"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. . ."

In the present case, the employer did not indicate that there was a contractual procedure specifically in place for recalling a former worker. However, the employer notified the employe by certified letter, which the commission considers a reasonable method for notifying a worker that work is available.

In this case, however, the employe had good cause for failing to respond to the recall letter. On June 25, 1999, the employe went shopping and her fiancé died suddenly and unexpectedly in their home. The police sealed off her house for a period of time because of the nature of the employe's fiancés death. The employe then moved to her sister's home, because she was uncomfortable returning to her home. On or about July 10 the employe started picking up her mail from her neighbor's house. The neighbor evidently ignored or misplaced the certified letter notification. The employe had no idea that the employer was intending to offer her work because the employer had not offered the employe work or made any contact with the employe in over five months. The employe testified that she contacted the employer asking for work and had been told there was no work available. This is not a situation where the employe was laid off as the result of a production slowdown, and might have expected a recall when more work was available. While a temporary help employer might offer a worker a position any time so that the employe ought to notify the employer if she moves. In this case the employe moved unexpectedly, and only stopped collecting her mail for a few weeks. Her reasons for so doing were understandable. Therefore, the employe had good cause for failing to return to work with a former employer after being recalled, within the meaning of Wis. Stat. § 108.04(8)(c).

DECISION

The decision of the administrative law judge is modified, and as modified is affirmed. Accordingly, benefits are allowed, if the employe is otherwise qualified.

Dated and mailed October 28, 1999
robinpa.urr : 145 : 6  SW 830.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner




MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but modified the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ. The commission concludes that a certified letter is a reasonable method by which an employer can offer work to a former employe. However, for the reasons discussed in its decision, the commission concludes that the employe had good cause for failing to return to work when recalled.

 

Pamela I. Anderson, Commissioner, (Dissenting)

I am unable to agree with the result reached by the majority herein and I dissent. I believe that the employer complied with § 108.04(8)(c) when it first phoned the employe to offer her a job and then sent her a certified letter because the phone was disconnected. The address the employer used was the employe's address of record. The method was reasonably intended to notify the employe of the recall. The testimony that the employe did not pick up any mail from June 25 to July 10 is not sufficient to overcome the notice provision. The employe has not changed her address of record even though she testified she continues to live with her sister at a different location.

The recall requires application of labor standards because there was an indefinite layoff in the employment. The job that the employe was offered fits into the maid housekeeping category and thus was not significantly less favorable to the employe so she would not have had good cause to refuse the job based on labor standards.

I would reverse and find that the employe failed to return to work with a former employer after being recalled under § 108.04(8)(c).


____________________________________
Pamela I. Anderson, Commissioner


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