BEFORE THE

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

DANIEL HIEB, Employee

DOMINOS PIZZA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-004564 MD


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, in the base period including the four quarters of 1989, payments made to the claimant by the named employer are not base period wages for benefit eligibility purposes.

Dated and mailed February 15, 1991
110 : CD6068  BR 309 UW 925

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The issue in this case was whether the employe had "base period wages" within the meaning of section 108.02 (4m), Stats. This required the application of that statutory provision to a certain payment the employe received from the employer in connection with a "conciliation agreement" entered into in connection with a claim of employment discrimination which the employe had brought against the employer. The employe argued that that money should be treated as "base period wages."

It should initially be noted, that the employe's arguments based on Sherbert v. Verner, 374 U.S. 398 (1963) and related cases are not considered relevant. Those cases related to situations in which state unemployment compensation laws conditioned the availability of benefits upon an applicant's willingness to work under conditions forbidden by the applicant's religion. The situation involving this employe does not implicate these issues. He was denied unemployment compensation benefits because he did not have adequate "base period wages". Whether or not, as the employe claims, his failure to have adequate "base period wages" was caused by the fact that the employer unlawfully refused to provide him employment because of his religion, the denial of unemployment compensation benefits was itself not caused by any matter touching upon the employe's religious beliefs.

Turning to the question of whether the payment received by the employe should have been treated as "base period wages", the Commission finds itself in complete agreement with the analysis of the Administrative Law Judge. Section 108.02 (4m) actually describes three types of payments which are "base period wages". The first type described are:

"All payments which are made to an employe during his or her base period for wage earning services as a result of employment for an employer, and all sick pay which is paid directly by an employer to an employe at the employe's usual rate of pay, all holiday pay, all vacation pay and all termination pay which is received by an employe during his or her base period as the result of employment for an employer."

The payment received by the employe in this case was not received by him during his base period "for wage earning services as a result of employment for an employer". The employe performed no wage earning services for the employer. Therefore, the payment received cannot be treated as "base period wages" on this basis.

The second type of payments which can be treated as "base period wages" under section 108.02 (4m), Stats., are described by the next sentence of the section:

"If an employe receives temporary total disability payments under Chapter 102, the federal longshoreman's and harbor workers compensation act (33 USC 901 to 950) or similar federal workers compensation legislation as a result of employment for an employer, ' base period wages' means, in lieu of such payments, all payments the employe would have received in the employment during his or her base period."

Quite clearly, the payment received by the employe in this case does not fit into this description.

The third type of payment which section 108.02 (4m), Stats., describes as being entitled to treatment as "base period wages" is:

"Back pay to which an employe is entitled under federal law, the law of any state or a collective bargaining agreement which the employe would have received as a result of employment during his or her base period and all payments an employer was legally required to make to a claimant with respect to employment in his or her base period, but failed to make due to bankruptcy or insolvency."

There are a number of reasons that the payment received by the employe in this case cannot be treated as "base period wages" under this provision. The first is that it relates only to payments "to which an employe is entitled under federal law, the law of any state or a collective bargaining agreement". The Commission considers that, within the meaning of this section, the fact of "entitlement" to the amounts in question can only be established by a determination and order to that effect by a tribunal of competent jurisdiction. Here, neither the Madison Equal Opportunities Commission nor any other tribunal or agency ever issued any order to the effect that because the employe had been discriminated against he was entitled to back pay. Therefore, it was not established that the employe was "entitled under federal law, the law of any state or a collective bargaining agreement" to the payments in question. Another reason that this provision is not applicable here is that it relates to back pay "which the employe would have received as a result of employment during his or her base period". The Commission considers that, within the meaning of this section, the amount of payment must be demonstrated to have been based upon or in some fashion related to a finding that services would have been performed and certain wages would have been earned. This was absent here. For one thing, there was never any order of the Madison Equal Opportunities Commission or any other tribunal, entered on any basis, which found or concluded that but for illegal discrimination the employe would have performed services for the employer and earned certain wages. For another thing, the "conciliation agreement" does not indicate, imply or suggest that the amount designated for payment is in any fashion related to any finding or even any estimate as to what wages would have been earned. The employe offered no persuasive evidence to establish that the amount was related to pay "which the employe would have received as a result of employment". To make such a finding would require speculation. It could as easily be speculated that the amount related to an estimate on the part of the employer as to the potential costs of defending the claim.

For these reasons, the Commission concludes that the payments were not "base period wages" within the meaning of section 108.02 (4m), Stats.

The employe has argued that Social Security Board v. Nierotko, 327 U.S. 358(1946) establishes that the payments in this case should have been considered to be in the nature of "wages". The Commission disagrees. The Nierotko decision simply held that back pay paid to the employe by the employer as a result of an affirmative order by the National Labor Relations Board constituted wages under the Social Security Act. The third sentence of sec. 108.02 (4m), Stats., effectively achieves the same result. As noted above, however, the payment made in this case was not made pursuant to such an order. Nierotko is not persuasive authority for the proposition that amounts received in settlement of a claim should be treated as "back pay".

The employe has cited a number of Revenue Rulings of the Internal Revenue Service in, support of his assertion that the amounts paid herein were "base period wages". The Commission has considered these but finds them distinguishable. Revenue Ruling 72-341 related to payments made pursuant to a formal order of a court requiring such payments, this order having been entered on stipulation of the parties. Additionally, the amount paid to each employe was based on a formula that took into account the difference between the employe's actual earnings and what the earnings would have been but for the discrimination. Neither of these factors are present here. Revenue Ruling 72572 concerned payments made to an employe in settlement of a discrimination complaint about allegedly discriminatory termination. The Revenue Ruling resolved the matter on the basis of a conclusion that the payment was a "dismissal payment". Such a rationale is obviously not possible in this case, in which there was never any employment. This Revenue Ruling is therefore of very doubtful relevance. Revenue Ruling 78-176 involved amounts paid pursuant to a Consent Decree in a Title VII case. Thus, as in Revenue Ruling 72-341, the payments were made pursuant to an affirmative order of a tribunal of competent jurisdiction. As noted before, this was simply not the case here. Additionally, according to Revenue Ruling 78-176, the payments made in that case represented an agreed amount to compensate each employe for the loss of prospective employment. In this case, however, as noted above, there is nothing in the record indicating that there was any such mutual understanding between the parties as to the nature of the payment.

The employe has made a number of other arguments which the Commission has considered but found unpersuasive.

The employe objected that the record was not "sealed" as he had requested in light of the fact that the "conciliation agreement" bound him not to make its contents public. The employe has not directed the Commission's attention to any legal authority for such "sealing" of a record in a particular case. In any event, the effect of what the employe was seeking is arguably already provided for by section 108.14 (7)(a), Stats., which provides that records made or maintained by the Department or Commission in connection with the administration of the chapter are confidential and shall be open to public inspection or disclosure only to the extent that the Department or Commission permits it in the interests of the unemployment compensation programs.

The employe asserted that testimony of witnesses about the payment being associated with particular lost wages was not allowed. The Commission has carefully reviewed the record, including the synopsis of the proceedings, and finds no indication that the employe (who, with his attorney, participated in the hearing via telephone from New Mexico) offered the testimony of any other persons or that any offer of testimony was denied by the Administrative Law Judge.

The employe asserts that attempts to cite precedent regarding his right to wear a beard and long hair as an expression of his religious beliefs was cut off. Assuming only for the sake of discussion that this is true, it is adequate to note that hearings are provided in order to allow parties the opportunity to present evidence on matters of disputed fact. A party has no absolute right to use the time allowed for hearing to submit legal argument. In any event, it appears from the synopsis that ample opportunity was given to counsel for the employe to argue legal issues to the Administrative Law Judge. Materials sought to be submitted by the employe in the nature of legal argument have also been submitted with the petition for review and have been fully considered by the Commission.

The employe asserts that he should have prevailed because Dominos failed to appear at the hearing. However, under the unemployment compensation act, benefits are not awarded and issues are not determined "by default". Irrespective of the failure of Dominos to appear at the hearing, it was incumbent on the employe to present such evidence at the hearing as was adequate to sustain a finding in his favor. This he failed to do.

The employe argues that he is entitled to "heightened consideration about his rights" because he pursues his petition for review pro se. The Commission evaluates each petition for review on its merits, without regard to the question of whether petitioner is represented by counsel or not, and it can give no special consideration to the position of the employe herein simply because he proceeds without counsel at this point.

cc: 
David Marion
Attorney at Law


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/12/18