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

MICHAEL H LANGER, et al., Employees

DOBOY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05202356NRG


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, except that it makes the following modifications:

Delete the sixth paragraph under the administrative law judge's Findings of Fact and Conclusions of Law and insert therefor:

The appeal tribunal concludes that the employees lost their employment because of a strike in active progress in the establishment in which they were employed. The employer's actions did not constitute a lockout. The employer was simply preparing for the possibility that the employees would vote to strike. The employer notified the employees' union negotiator that they would be paid for October 31 since they had voted to strike. In addition, had the employer's conduct in not allowing the employees to work on October 31, 2005, constituted a lockout the appeal tribunal would conclude that it was a lockout that was directly subsequent to a job action by the employees, namely, the union negotiators declaration that the employees were going to strike.


DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employees are ineligible for benefits in weeks 45 through 51 of 2005 based on wages paid for employment prior to the commencement of the dispute while the strike or other bona fide labor dispute, other than a lockout, is in active progress.

Dated and mailed October 10, 2006
langemi . umd : 132 : 8   LD 520  LD 550  LD 580

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission affirms the appeal tribunal's conclusion that the employees lost their employment because they were on strike. The commission notes that in reviewing this case, it did speak with the administrative law judge regarding his impressions of witness credibility and demeanor. The administrative law judge indicated, as reflected in his decision, that he credited the employer's testimony that when pressed by the employer regarding whether there would be a strike, the union negotiator responded, "You leave me no choice." The commission has found no reason to disturb that credibility determination.

The employees argue that they were not offered work until the employer's December 12, 2005 letter. The employees also argue that the employer's business was slow and it did not have work for all its employees. However, the employees did not establish that they sought to work after the contract expired and were not permitted to do so by the employer. Indeed, the employer testified that workers who indicated that they wished to return to work were allowed to do so. To the extent the employees argue that the employer offered them extremely unfavorable contract terms it knew they would reject, the commission would consider it to be a "constructive" lockout argument rejected by the court in Trinwith v. LIRC, 149 Wis.2d 634 (Ct. App. 1989).

The employees also argue that they should be eligible for benefits in week 51 of 2005 because they were willing to return to work in that week, but were not permitted to do so by the employer. However, it is well established law that if a dispute exists for a portion of the week, the employees are ineligible for benefits for the entire week. Armbruster et. al. v. United Parcel Service Inc., (LIRC Nov. 11, 1998); Tonn et. al. v. American Motors Corp. & Ind. Com., No. 698 (Wis. Cir. Ct. Dec. 8, 1980); Elliot et. al. v. General Motors Corp. & Ind. Com., No. 112- 243 (Wis. Cir. Ct. Feb. 3, 1964). The dispute existed on December 11 and 12 in week 51 of 2005. Some employees notified the employer they were willing to return on December 13. The employer was not informed that the union accepted its offer until December 15.

Employee Richard Paulson argues that he should be entitled to benefits based on his employment for another employer, from which he was laid off on November 4, 2005. The commission addressed this issue in Garbedian v. Milwaukee Brewers Baseball Club, (LIRC June 28, 1995) stating:

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.

Thus, Mr. Paulson cannot use wages earned in other employment before the strike to qualify for benefits.

Finally, employee Orlo Coleman has submitted to the commission what is apparently a notice posted by the employer pursuant to a settlement agreement following charges made by the employees' union with the NLRB. The commission, however, makes its own decision based on evidence presented before the ALJ and applying the unemployment insurance law of this state. The commission is not bound by a finding of fact or law, determination, decision or judgment in any action or proceeding not arising under ch. 108. See Wis. Stat. § 108.101(4).

 

ROBERT GLASER, COMMISSIONER (concurring):

I write separately because I would find that the employer's actions on October 31, 2005, constituted a lockout. However, as of November 1, 2005, the employees lost their employment because they were on strike.

__________________________________________
/s/ Robert Glaser, Commissioner

 

cc:
Gary Schmidt, IAMAW-District Lodge No. 77
Lawrence B. Suennen
Orlo D. Coleman
Rondell P. Hybben
Michael J. Allen
Eugene C. Mireau
Robert G. Krauss
Richard K. Paulson
Ronald I Waskul
Paul L. Wilbur


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