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

JERALDENE B BLOOM, Employee

CHAS LEVY CO LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01401458AP


On April 14, 2001, the Department of Workforce Development issued an initial determination which held that the employee quit her employment but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on June 4, 2001 in Appleton, Wisconsin before a department administrative law judge. On June 8, 2001, the administrative law judge issued an appeal tribunal decision amending in part and reversing in part the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee has worked approximately three and a half years as a field merchandiser for the employer, a book distribution concern, and remains employed with the employer. The employee works part time, averaging two to four hours per week. The issue in this case is whether the employee's taking an extended vacation in January-March of 2001, was a quit of employment or simply a leave of absence. The commission believes the vacation was only a leave of absence, and so reverses in part the appeal tribunal decision.

In December of 2000, the employee asked her supervisor, one of the employer's district managers, about taking an extended leave for a vacation with her husband. The vacation was to be from mid-January to the beginning of March. The supervisor told the employee that she could not guarantee the employee would still have her employment upon her return from vacation. The supervisor also told the employee, however, that she was going to find someone to cover the employee's work assignments. The supervisor's intent, in making these statements to the employee, was to allow the employee to return to work at the end of her leave. The supervisor did keep the employee's job open, because she had someone available to cover the store the employee performed services for.

The employee performed all the work the employer had available for her in week 2 of 2001. The employee then went on vacation, returning March 9 (week 10). At that time, she telephoned the employer to let the employer know she was back and available to return to work the following week. The employee was told to return to work the following week, week 12, and the employee did return to work for the employer that week.

Both the employee and employer characterized the employee's absence from work as a leave of absence. The commission agrees. For the employee to have been found to quit the employment when she took the vacation, it would have to be found that her doing so was conduct inconsistent with an intent to continue the employment relationship. The supervisor's statements to the employee, however, in their totality, were sufficiently broad as to preclude such a finding. Certainly, a statement to the effect that there would be no guarantee of continued employment upon return from vacation, alone, could be sufficient to trigger the "conduct inconsistent" analysis. In this case, though, the supervisor also told the employee that she would be finding someone to cover the employee's store while the employee was on vacation. In addition, she intended to allow the employee to return to work at the end of her leave, and she in fact did keep the employee's job open. Given all of this evidence, the employee's going on vacation was not conduct inconsistent with an intent to continue the employment relationship, and therefore was not a quit of employment by the employee.

Rather, it was a suspension of employment by the employee on grounds of her unavailability for work. Wisconsin Stat. § 108.04(1)(b)1 states that an employee is ineligible for benefits while unavailable for work if the employee suspended the employment because the employee was unavailable for suitable work otherwise available with the employer. The employee's actions in this case were no more than that.

The commission therefore finds that, in week 3 of 2001, and continuing through week 10, the employee's employment was suspended by the employee because the employee was unavailable for suitable work otherwise available with the employer and the employee was unavailable for work, within the meaning of Wis. Stat. § 108.04(1)(b)1, but that beginning in week 11 of 2001, the employee was able to work and available for work on the general labor market, within the meaning of said section.

DECISION

The appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the employee is eligible for unemployment insurance in week 2 of 2001, ineligible for unemployment insurance in weeks 3-10 of 2001, and eligible again as of week 11 of 2001, if otherwise qualified.

Dated and mailed August 23, 2001
bloomje . urr : 105 : 1 AA 250

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse in part the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Both the administrative law judge and commission have credited the testimony from the employee's supervisor regarding the leave the employee took. The commission does not believe that the supervisor's statements, in their totality, allow the conclusion that the employee's taking the leave was the conduct inconsistent with an intent to continue the employment relationship, which is a quit of employment under Wis. Stat. § 108.04(7)(a).

cc: Chas Levy (Illinois)


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uploaded 2001/08/27