RICHARD W. KUBATZKI, Claimant

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for Trade Readjustment Allowances (TRA) or the Health Insurance Tax Credit based on work performed in the qualifying period (August 26, 2001 through August 24, 2002) for Manitowoc Cranes (Petition No. TA-W-50968). The employee may still be eligible for training, relocation or job search assistance based on his separation from adversely affected employment.

Dated and mailed October 13, 2004
kubatri . tsd : 110 :   TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The claimant worked for Manitowoc Cranes, an employer determined to have been adversely affected by foreign competition under the Trade Act (Petition No. TA-W-50968). He began working for Manitowoc Cranes on March 6, 2002, and was laid off on August 23, 2002, along with a number of other employees. The employees generally were told that they could use vacation or leave time, if they were eligible for any, to extend the date of their layoff. The claimant herein, however, was informed that he and other similarly situated employees, who had been employed there for less than a year, were not eligible for any vacation in 2002.

The claimant was subsequently determined to not be eligible for TRA and other benefits under the Trade Act because he had not met the qualifying requirement in 19 U.S.C. § 2291(a)(2) that he have at least 26 weeks of employment at wages of $30 or more a week in adversely affected employment in the 52-week period ending with the week in which the claimant's qualifying separation occurred. Given his dates of employment at Manitowoc Cranes, the claimant herein had only 25 weeks of qualifying employment.

In September, 2003, the claimant received a paycheck from Manitowoc Cranes which indicated that it was for 32 hours of vacation pay earned during his employment there. Subsequently, the claimant appealed the determination that he was not eligible for TRA and other benefits under the Trade Act, arguing that the additional week of pay could be used as one more week of employment at wages of $30 or more, thus bringing him up to the required 26 weeks.

In a previous decision issued in response to that appeal, Richard W. Kubatzki (LIRC, January 14, 2004), the commission set aside the decision which had disqualified the claimant and remanded the matter to the department for further hearing. The commission took this action because it concluded that the claimant's situation might, depending on the particular facts, allow the claimant to be treated as having had the required 26 weeks of employment, under the theory described in Daniel M. Alexander (LIRC, July 10, 2003). The significant question presented, was whether at the time he was laid off, the claimant herein actually had the right to take the 32 hours of vacation that he was subsequently paid for in 2003, such that he would have been able to continue himself in pay status with Maintowoc Cranes for one more week after his last day of work.

The facts as developed at the remand hearing now make it clear that the claimant was not entitled to take paid vacation leave at the time of his layoff. As the ALJ explained, the applicable collective bargaining agreement gave the claimant an entitlement to certain vacation calculated on the basis of his wages earned in 2002, but he could not actually take or be paid for this vacation until the beginning of 2003. The claimant had received the check for this accrued vacation pay entitlement in September, 2003, pursuant to a provision in the collective bargaining agreement stating that a worker who is on layoff and has not returned to work by September 1 in a given year, receives an automatic vacation payout at that time.

In his petition for review, the claimant argues that the witness for his employer testified that he was still considered to be on the employer's payroll as of January 1, 2003, when he first became eligible to take the vacation pay he had "earned" as a result of his employment in 2002. He then argues that this is like the situation presented in Alexander, in that his being on the payroll as of the beginning of January, 2003 effectively moved his date of separation down to that point. These arguments are incorrect. The question is not simply whether the employer considers the employee to be "on the payroll" in some abstract sense, but also whether the employee is in fact being paid for a period of time immediately following the last day of actual work, such that there is no cessation of pay status. In the Alexander case,

The claimant last actually performed work for the employer on July 18, 2001. On July 18, 2001, he was told he should no longer come in to work. However, he was told by his employer that he was considered to be employed until September 16, 2001, and he continued to receive pay and benefits through that date. He was informed that September 16, 2001 was the effective date of his termination.

(emphasis added). These circumstances were not present here. After his last day of work in August 2002, and whether or not the employer considered him to be "on the payroll" in some sense, the claimant herein did not continue to receive pay and benefits. Furthermore, what has now been determined as a result of the evidence provided at the further hearing is that he could not have extended his receipt of pay and benefits by electing to receive vacation, because at that point (in August, 2002) he did not yet have the right to receive that vacation benefit. Alexander is not applicable here.

The claimant also points out provisions in the Claiming Wisconsin Unemployment Benefits handbook which indicate that holiday, vacation and dismissal pay are treated as wages, and that they must be reported for the week to which they were assigned, even if received in a later week. These provisions are simply not applicable. For one thing, they reflect elements of Wisconsin's Unemployment Insurance law, not the Trade Act. For another thing, they do not concern the question of what is counted in determining if someone has sufficient employment to establish benefit eligibility in the first place; rather, they concern the question of whether receipt of holiday, vacation and dismissal pay in or for a particular week affects the right of an otherwise-eligible claimant to receive benefits for that week.

For all the foregoing reasons, the commission has affirmed the decision of the ALJ.

cc: Manitowoc Cranes

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