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

CHRISTINE L RAU, et al., Employees

HURD WINDOWS & DOORS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07200206WUG


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employees benefit entitlement for the weeks specified on the determination during that eight week period is calculated using the mount of back pay specified as wages. The employees are required to repay the amounts specified on the determination to the Unemployment Reserve Fund.

Dated and mailed August 22, 2007
rauchri . usd : 132 : 1   UW 925

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employees have petitioned for commission review of the adverse appeal tribunal decision that found they received back pay that must be considered wages for week 52 of 2005 through week 6 of 2006. The employees argue in their petition that the payments should not be considered back pay because the employer did not have work available for the employees in the weeks at issue. However, the evidence and inferences drawn from that evidence establish that the employer did not have work for the employees because it had hired replacement workers. The NLRB found that the employer had engaged in unfair labor practices. The employer was ordered to pay 67 discriminatees back pay. The employees testified that there were about 110 strikers. The inference therefore is that only those employees who did not work because replacement workers were hired in their stead were awarded back pay. Thus, the employees who received back pay did not work because of the employer's discriminatory conduct. See Dehnhart v. Waukesha Brewing Co., 21 Wis.2d 583 (1963). As a result, the back pay must be considered wages when calculating benefit eligibility in weeks 52 of 2005 through week 6 of 2006.

cc:
Lowell Schultz
Attorney George F. Graf



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uploaded 2007/08/27