In the matter of the unemployment benefit claims of

ROBERT R. KLEIN, et al., Employes

Involving the account of


Hearing No. 89-602189 MWG

The Department's Initial Determinations held that in week 53 of 1988 the employes were not on a voluntary leave of absence within the meaning of section 108.04 (1)(b)2., Wis. Stats. Accordingly, benefits were allowed. The employer timely appealed (requested a hearing). Such hearing was held on May 18, 1989 and the presiding Administrative Law Judge issued his decision on June 28, 1989, affirming the Initial Determinations. The employer timely petitioned for a review by the Commission.

The employer's attorney having asserted that the synopsis of testimony prepared by the Administrative Law Judge is inadequate, the tape recording of the hearing has been reviewed.

Based on the evidence and applicable law, the Commission makes the following:


Robert R. Klein, the representative employe, and certain other employes in the employer's manufacturing plant (whose names are listed in the attached appendix), claimed unemployment compensation benefits for week 53 of 1988 (the calendar week ending December 31, 1988). No work was available to these employes during that week because the employer had scheduled a "vacation shutdown."

The issue to be resolved is whether the listed employes were eligible for unemployment compensation benefits for week 53 of 1988.

For approximately 11 years prior to 1987, there was a collective bargaining agreement between the employer and the union representing the employes which provided that if the employer wanted a production shutdown during certain weeks in the summer, the employer could designate one week of such shutdown as a week of mandatory vacation for its employes, if the employer made its intention known to the employes not later than February 15. When such a designated week occurred, the employer paid its employes a week of vacation pay and, so far as this record shows, affected employes did not claim unemployment compensation.

The present controversy results from a different collective bargaining agreement, negotiated in 1987, and first applicable to shutdowns which occurred in 1988. During negotiations, the employer sought to obtain a provision which would permit the employer to designate a second week, during the employer's "Christmas shutdown," as a week of mandatory vacation. The union wanted some flexibility in any such provision and the compromise ultimately reached was that the employer could designate Christmas week as a vacation shutdown but it would not be mandatory that employes use vacation during that period; however, the employer obtained a provision which effectively required that employes who did not save a week of vacation for Christmas week but chose, instead, to use up their vacation earlier in the year would be considered (by the parties to the collective bargaining agreement) to be on a "personal leave of absence" in Christmas week and therefore ineligible for U. C.

A majority of the employer's employes did not apply for unemployment compensation for week 53 of 1988. Many had saved a week of vacation and therefore received vacation pay for that week; others, who had not saved any vacation, nonetheless refrained from claiming unemployment compensation. However, the employes involved in this appeal, all of whom had been permitted by the employer to exhaust their vacation prior to week 53 of 1988, did claim unemployment compensation for that week, asserting, in effect, that they were neither on vacation nor otherwise disqualified from receiving benefits in that week. The employer contested their eligibility.

Section 108.02 (11), Wis. Stats., provides a presumption of eligibility for unemployment compensation benefits, in that such provision requires that an employe shall be deemed eligible unless disqualified by a specific provision of Chapter 108 of the Statutes.

Section 108.05 (4)(b) of the Statutes provides for the treatment of vacation pay as disqualifying wages for weeks to which such vacation pay has been allocated, if the several requirements of that provision are satisfied. Neither that provision nor any other provision in Chapter 108 purports to regulate the respective rights of employers and employes to determine which weeks shall constitute vacation weeks. Such issues are resolved by application of the common law rule that employers have the right to prescribe vacation times for their employes, except to the extent they have contractually relinquished such right.

In view of the above-discussed facts of the instant case, and the limited scope of Section 108.05 (4)(b), Wis. Stats., that provision does not aid in resolving this case. This is so because the employer does not contend that these employes' vacation pay was effectively allocated to week 53 of 1988; it is undisputed that these employes' vacation weeks occurred, and were exhausted, in weeks prior to week 53 of 1988 and that their vacation pay was paid to them contemporaneous with their use of vacation time.

While the employer is not arguing that week 53 of 1988 was a vacation week for these employes, the employer is arguing that these employes are ineligible for unemployment compensation because they were on a leave of absence in such week. The employer has referred to the alleged leave of absence as a "personal leave of absence" (reflecting the use of the same term in section 5.3 (e) of the 1988 contract) and as a "voluntary leave of absence." While the employer has not identified a specific provision of Chapter 108 which disqualifies these employes, the only arguably applicable provision is section 108.04 (1)(b)2., which provides:

(b) An employe is ineligible for benefits:

1. . . .

2. While the employe is on a voluntary leave of absence granted for a definite period, until the period ends or until the employe returns to work, whichever occurs first;

The dispositive question thus becomes whether these individual employes-claimants were, in week 53 of 1988, on voluntary leaves of absence from their work with this employer.

The Commission considers that these employes could not be absent from work, or on a leave of absence from work, in week 53 of 1988, because no work was available to them in that week.

The lack of any work available to these employes-claimants in week 53 of 1988, standing alone, makes section 108.04 (1)(b)2., Wis. Stats., inapplicable to disqualify them from receiving unemployment compensation for such week. However, since the employer has argued, in effect, that these employes-claimants were "voluntarily unemployed" in week 53 of 1988, the Commission will address such argument.

As the foregoing would indicate, the Commission does not agree that these employes could be "voluntarily unemployed" in a week in which no work was available to them. Section 108.02 (15)(a) defines "employment" for unemployment compensation purposes, as services performed for pay. Section 108.02 (25), Wis. Stats., defines "total unemployment" as the situation of an employe "in any week for which he or she earns no wages." These employes neither performed services for pay nor earned wages in week 53 of 1988. Leaving aside such fundamental considerations, the employer's argument that the ratification of the 1988 contract by a majority of members in the employes-claimants' union renders them voluntarily ineligible for unemployment compensation pursuant to section 5.3 (e) of such contract, might be a viable argument in some states, but is contrary to both statutory and case law in Wisconsin. Specifically, section 108.12, Wis. Stats., provides as follows:

Waiver of benefit void. No agreement by an employe to waive his right to benefits or any other rights under this chapter shall be valid. No employe shall, in any proceeding involving benefits under this chapter, be prevented from asserting all facts relevant to his eligibility, regardless of any prior erroneous representation with respect to such facts."

In Roberts v. Industrial Commission, 2 Wis. 2d 399 (1957), the Wisconsin Supreme Court held that conditions of eligibility for unemployment compensation are not subject to collective bargaining agreements or other private contracts. This is not to say that employers and employes may not negotiate contractual provisions that will affect unemployment compensation eligibility; however, where there is a specific statutory condition of eligibility (in this instance, a requirement that claimants are not on a voluntary leave of absence), the determination of such issues as whether a leave of absence occurred and whether any such leave was voluntary, are issues the resolution of which are the exclusive province of the Department, the Commission and, ultimately, reviewing courts, if any.

Plainly stated, the Commission does not doubt that the employer and the union leaders who negotiated the contract understood that employes in the situation of these claimants would be ineligible for unemployment compensation. That is not, however, the result under the specific provisions of Chapter 108, which must control. While it may be argued that these employes-claimants voluntarily exhausted their vacation time and vacation pay prior to week 53 of 1988, it is equally true that the employer voluntarily allowed them to do so. Section 5.3 (f) of the contract expressly recognizes the employer's reservation of its common-law discretion to approve (or deny) requests for specific non-shutdown weeks as vacation. In 1988, with respect to these particular employes-claimants, the employer approved vacation scheduling requests which exhausted these employes' vacation rights and therefore made section 108.05 (4)(b), Wis. Stats., inapplicable to their situation in week 53 of 1988. The only other potentially applicable disqualifying provision, section 108.04 (1)(b)2., Wis. Stats., is inapplicable, as discussed above, for the reasons that there was no work available in week 53 of 1988 for these claimants to be on a leave of absence from, and Wisconsin Unemployment Compensation Law does not permit a contract provision to render an employe voluntarily ineligible for unemployment compensation.

The Commission therefore finds that in week 53 of 1988, the employes-claimants were not on vacation, not on a voluntary leave of absence within the meaning of section 108.04 (1)(b)2., Wis. Stats., nor were they disqualified by any specific provision of Chapter 108 of the Statutes.


The Appeal Tribunal's Decision is modified to conform with the foregoing, and, as modified, is affirmed. Accordingly, the employes are eligible for benefits in week 53 of 1988, if they are otherwise qualified.

Dated and mailed February 27, 1990
200 : CD5910    AA 126.4  UW 910 

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE: Testimony given in this matter indicated that in 1989 the employer began requiring employes to sign a written form requesting a leave of absence for the Christmas shutdown week in order to obtain approval of a request for an earlier week or weeks of vacation. The Commission will, of course, resolve appeals relating to Christmas week 1989 on their own merits; however, for the benefit of the Department and the parties, the Commission will state that the mandatory signing of the described form would be of dubious value in deciding the voluntariness in fact of the employes' actions. More importantly, no such form could alter the facts as to the actual availability or unavailability of work in the unemployment compensation week in issue.

Paul V. Lucke & Marty R. Howard, Attorneys
Reinhart, Boerner, Van Deuren, Norris & Rieselbach

Appealed to Circuit Court.  Affirmed, December 17, 1990.  [Summary of Circuit Court decision]

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