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

JEFFERY D VOISIN, Employee

OLD DOMINION FREIGHT LINE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04604728MW


On April 22, 2004, the Department of Workforce Development issued an initial determination which held that the employee had been on a voluntary leave of absence within the meaning of Wis. Stat. § 108.04(1)(b)2. The employee filed a timely request for hearing on the adverse determination, and hearing was held on June 23, 2004 in Milwaukee, Wisconsin before a department administrative law judge. On July 12, 2004, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter is 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 works as a part-time dock worker for the employer, a trucking concern. The employee missed four weeks of his part-time employment because he was attending "approved training" in conjunction with his full-time operating engineer apprenticeship for a construction concern. The issue is whether the employee is disqualified from unemployment insurance eligibility while undergoing the approved training on the ground that his absence from the part-time employment was a voluntary leave under Wis. Stat. § 108.04(1)(b)2. The commission concludes that he is not, and so reverses appeal tribunal decision.

The employee attended a training program for the apprenticeship program from March 29, 2004 (week 14) through April 23, 2004 (week 17). The Department of Workforce Development considers such training to be "approved training" under Wis. Stat. § 108.04(16). A claimant in such training is not required to meet the general availability for work requirements for claimants; nor are claimants in approved training penalized for refusals of offers of work.

The employee's apprenticeship employment is by contract with a division of the department, the Division of Workforce Solutions. The contract is between the employee, the department, and the employee's sponsor, Wisconsin Operating Engineers. The employee's apprenticeship includes several sessions of required training of various durations and, as indicated above, such training is considered by the department to be approved training under Wis. Stat. § 108.04(16).

Wisconsin Stat. § 108.04(1)(b)2 disqualifies an employee for unemployment insurance eligibility while the employee "is on a voluntary leave of absence granted for a definite period, until the period ends or until the employee returns to work, whichever occurs first . . . ." The commission cannot conclude that the employee's absence from his part-time employment in order to attend the training is voluntary, within the meaning of the statute. The dictionary defines voluntary to mean "acting or performed without external persuasion or compulsion" and "without legal obligation, payment, or valuable consideration." The employee's leave from his part-time employment does not meet these definitions. The employee is in a contractual relationship with his apprenticeship employer, the Wisconsin Operating Engineers Union, and the department. Within that contractual relationship, he is required to attend the training for which he took the leave of absence. Given these factors, it strains the statute too much to call his leave of absence a voluntary one under Wis. Stat. § 108.04(1)(b)2.

The commission therefore finds that, in weeks 14 through 17 of 2004, the employee was on a leave of absence for a definite period, but that it was not voluntary within the meaning of Wis. Stat. § 108.04(1)(b)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance in weeks 14 through 17 of 2004, if he is otherwise qualified.

Dated and mailed February 28, 2005
voisije . urr : 105 : 8 AA 126.2  AA 205

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission has concluded as a matter of law that the employee's leave to attend required training in conjunction with his apprenticeship employment was not voluntary within the meaning of Wis. Stat. § 108.04(1)(b)2.

 

cc: Old Dominion Freight Line, Inc. - Milwaukee, WI


Appealed to Circuit Court. Affirmed September 6, 2005.

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