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

RONALD R NELSON, Employee

VILLAGE OF ARGYLE LAFAYETTE COUNTY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001119MD


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee works full time as a pipe layer for Henshue Construction, a company that performs sewer and water contracting work. This work is seasonal and the employee is regularly on temporary layoff in the early part of every new year.

In April of 2004, the employee was elected to a position as a trustee of the Village of Argyle in Lafayette County, Wisconsin. The employee's last day of work as an elected official for the Village of Argyle was February 9, 2005 (week 7) when the employee quit for personal reasons. The employee quit his part-time job as a trustee because he had custody of his eleven year old daughter on the nights of the Village's monthly meetings. The employee was paid $50.00 per meeting by the Village and received a lump sum of this pay at the end of each year. It is undisputed that the employee resigned his position as an elected official for the Village of Argyle on February 9, 2005. Therefore, the remaining question is whether any statutory exception exists that would permit the immediate payment of benefits based on the employee's resignation of his elected official position as a trustee of the Village of Argyle.

The most relevant statutory exception can be found at Wis. Stat. § 108.04(7)(n). This statutory subsection provides that an employee is eligible for benefits if he terminates work as a part-time elected member of a governmental body when engaged in work for another employing unit and was paid wages in the terminated work constituting no more than 5 percent of the employee's base period wages for purposes of benefit entitlement. The application of this subsection requires that a determination be made as to whether the employee was "engaged in work for another employing unit" when the employee resigned as a trustee for the Village of Argyle. The ALJ found that the employee was not engaged in work for an employing unit other than the Village Board when he quit because the employee was still on layoff from his full-time work with Henshue Construction at the time he resigned.

In Hemstock Concrete Products v. LIRC, 127 Wis.2d 437 (Ct. App.1985), the court determined that an employment relationship continues where a worker has a definite expectation of being recalled at a date that was definitely predictable. Specifically,

There is a presumption that a layoff severs the employment relationship, but both the commission and the court have recognized that the presumption may be rebutted by "evidence that at the time of layoff there existed an assurance, expressed or clearly implied by circumstances, that work and wages would be resumed at an ascertainable time in the not too distant future." Hemstock Concrete Products, Inc. v. LIRC, et al., 127 Wis. 2d 437, 442, 380 N.W. 2d 387 (Ct. App. 1985), citing A. O. Smith Corp. v. ILHR Department, 88 Wis. 2d 262, 267, 276 N.W. 2d 279 (1979).

The Hemstock court found the employee's seasonal layoff resumed at an ascertainable time in the not too distant future with the onset of warmer weather that would permit outdoor work.

Based on the record, the commission infers that the duration of the employee's layoff from Henshue Construction was also ascertainable because it had a definite ending point with the onset of weather that would permit pipe laying. Consequently, applying the principles of Hemstock to the facts found, the employee was not in an indefinite layoff status as the ALJ concluded but rather the employee was engaged in work for another employing unit, Henshue Construction, at the time the employee resigned his position as a trustee of the Village.

The commission therefore finds that in week 8 of 2005, the employee terminated work as a part-time elected member of a governmental body when engaged in work for another employing unit and was paid wages in the terminated work constituting no more than 5 percent of the employee's base period wages for purposes of benefit entitlement, within the meaning of Wis. Stat. § 108.04(7)(n). The employee is eligible for benefits, if otherwise qualified. There is no overpayment of benefits.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 8 of 2005, if otherwise qualified. There is no overpayment of benefits.

Dated and mailed September 21, 2007
nelsoro . urr : 135 : 1  VL 1020

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPNION


The commission did not confer with the ALJ prior to reversing the decision. This reversal is based upon a differing legal conclusion regarding the employee's employment status with his full-time employer at the time he resigned from the Village Board.

Both parties petitioned and briefed the commission. As a result of the commission's reversal there is no overpayment with the employee's quitting under Wis. Stat.
§ 108.04(7)(n) and the issue of overpayment waiver and employer and employee fault under Wis. Stat. § 108.04(13)(f) need not be addressed.

 

cc:
Attorney Ralph D. Farrell
Attorney R. Scott Jacobson


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