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

CHARLES M GARBEDIAN, Employee

MILWAUKEE BREWERS BASEBALL CLUB, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95601692MW


On March 9, 1995, the Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which held that in week 33 of 1994 the employe left or lost his employment with the employer because of a strike or other bona fide labor dispute in active progress in the establishment in which he was employed. As a result, no benefits were payable based on wages paid for work performed prior to the beginning of the labor dispute while the dispute was in active progress. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On May 11, 1995, the appeal tribunal issued a decision which reversed the initial determination to find that the employe was eligible for benefits while the dispute was in active progress based upon wages which were paid prior to the commencement of the labor dispute for employment other than from the employer.

The department has filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employer is a professional baseball club. The employe worked for the employer for eleven years as a member of the scoreboard crew. The employe's work for the employer was seasonal, starting in April and ending in October of each year.

On August 12, 1994 (week 33), the professional baseball players went on strike. As a result of the strike the employe was prevented from working on the scoreboard crew after week 33 of 1994.

Section 108.04(10)(a), Wis. Stats. states in relevant part:

"An employe who has left or partially or totally lost his or her work with an employing unit because of a strike or other bona fide labor dispute, other than a lockout, is not eligible to receive benefits based on wages paid for employment prior to commencement of the dispute for any week in which the dispute is in active progress in the establishment in which the employe is or was employed, except as provided in par. (b)."

The issue to be determined is whether the employe left or partially or totally lost his employment because of a bona fide labor dispute in active progress in the establishment in which he was employed and, if so, what effect section 108.04(10) (a) of the statutes has on his eligibility for benefits.

It is undisputed that a labor dispute was in active progress in the same establishment in which the employe worked, and that the labor dispute commenced on August 12, 1994 (week 33). Although the employe conceded that he lost his work with the employer because of the labor dispute, he also contended that he would have been subject to a seasonal lay-off in October of 1994.  While it is true that the employe would have been laid off in October, even without regard to the strike, the fact remains that the employment relationship was severed or disrupted prior to the end of the regular baseball season because of the strike. Consequently, section 108.04 (10) (a), of the statutes must be applied to the employe.

The commission then turns to the question of what effect, if any, section 108.04 (10) (a), Stats., has on the employe's eligibility for benefits. The statute provides that those employes to whom the disqualification applies are not eligible to receive benefits "based on wages paid for employment prior to commencement of the dispute for any week in which the dispute is in active progress in the establishment in which the employe is or was employed." Section 108.04 (10) (a) Stats. The appeal tribunal interpreted this portion of the statute as effecting a 'per employer' disqualification, such that those wages earned from the employer were excluded, but the employe was not disqualified from receiving benefits based on wages earned from ether employing units which had no involvement in the strike. The commission disagrees with this interpretation of the statute and reverses the appeal tribunal decision.

The commission recently considered the question of what effect the labor dispute disqualification has on those wages earned prior to the commencement of the labor dispute from an employing unit unconnected to the dispute. In Robert A. Roche, et. al. v. Milwaukee Brewers Baseball Club (A PTR) (LIRC, May 8, 1995), a case involving the same employer and a similar set of facts, the commission looked to the statute's specific disqualification based on wages paid "for employment" and concluded that, based upon the plain language of the statute, no wages earned prior to the strike could be used to form the basis for benefit eligibility while the strike was in progress, even if the wages were earned from an employing unit with no connection to the labor dispute. Although the commission recognized that the result of such an interpretation was harsh, and one that may not have been anticipated or intended by the legislature, the commission considered itself constrained to apply the statute as it was written by that body.

The commission, therefore, finds that the employe partially or totally lost his work with the employer because of a strike that commenced in week 33 of 1994, within the meaning of section 108.04(10), Stats. Consequently, the employe is ineligible to receive benefits based on all wages paid for employment prior to the commencement of the labor dispute, for any week in which the dispute was in active progress in the establishment in which he was employed.

The commission further finds that the employe was paid benefits in the amount of $1,255.00, for weeks 9 through 13 of 1995, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1), Stats. and that, pursuant to section 1.08.22(8)(a), Stats., he is required to repay such sum to the Unemployment Reserve Fund.

The commission further, finds that waiver of benefit recovery is not required under section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04(13)(f), Stats., the overpayment was not the result of a department error. See section 108.22(8) (c) 2., Stats.

DECISION

The appeal tribunal decision is reversed. Accordingly, no benefits are payable based on wages paid for employment prior to the beginning of the labor dispute while it remains in active progress. The employe is required to repay the sum of $1,255.00 to the Unemployment Reserve Fund.

Dated and mailed June 28, 1995
garbechl . urr : 164 : 0  LD 580

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

 

NOTE: The commission's decision to reverse the appeal. tribunal decision did not involve an assessment of the credibility of the witnesses in this case. The commission does not reverse any credibility determination made by the appeal tribunal but, for the reasons set forth in this decision, differs with the appeal tribunal as to the interpretation and application of the unemployment compensation law under essentially the same; set of facts as that found by the appeal tribunal.

The department will withhold benefits due for future weeks of unemployment in order to offset payment of U.C. and other special benefit: programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. 0. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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