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


ROBERT K ARMBRUSTER ET AL, Employe

UNITED PARCEL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602349MWG



An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. Pursuant to authority granted in Wis. Stat. § 108.09(6)(c), the commission sets aside the appeal tribunal decision on the grounds of mistake and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employes worked for the employer, a delivery business. A labor dispute began at the workplace on August 3, 1997 (week 32), and continued until August 19, 1997 (week 34).

The employes were members of the Teamsters Union, which maintained a contract with the employer. The contact expired on July 31, 1997. Negotiations to establish a new contract were not successful and the union initiated a strike on or about August 3, 1997. The employes were informed of that strike and thereafter did not report for work. They did not cross the picket lines which were established at the workplaces by the union. The strike continued until August 19, 1997, at which time a new contract was established. The employes contacted the workplace and were told that there was no work available for them for the remainder of that week. The employes returned to work on or about August 25, 1997 (week 35).

Wisconsin Statute § 108.04(10)(a) provides:

"An employe who has left or partially or totally lost his or 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 . . . ."

The issue to be decided is whether the employes lost their work with the employer in weeks 32 through 34 of 1997 due to a bona fide labor dispute as defined in Wis. Stat. § 108.04(10).

The employes did lose their work with the employer because of a strike. The strike was in existence in weeks 32 through 34 of 1997. The employes contended that their period of unemployment during week 34 of 1997, was not due to the strike because it had ended on Tuesday of that week. This contention cannot be sustained. The statutory language indicates that an employe is ineligible for benefits "for any week in which the dispute is in active progress." The definition of the word "week" is "calendar week, starting Sunday and ending Saturday . . . ." See Wis. Stat. § 108.02(27). Such language clearly disqualifies an employe for an entire week if the dispute exists during any portion of that week. The only exception is if the strike ends on a Sunday and the employes seeking benefits do not normally work on Sundays. See Wis. Stat. § 108.04(10)(c). The question is not whether the employes lost work during part of the week for reasons unrelated to the strike, but whether the employes lost some work in the week because of the strike.

The commission's interpretation of Wis. Stat. § 108.04(10)(a) is consistent with its past decisions. In Tonn et. al. v. American Motors Corp. & Ind. Com., No. 698 (Wis. Cir. Ct. Dec. 8, 1980), a strike at the employer's Kenosha plant resulted in the closing of the employer's Milwaukee plant from 11:00 a.m. on Tuesday of week 5 until Tuesday of week 6. The employes were idled due to the closing of the Milwaukee plant. The strike in the Kenosha plant ended on Wednesday of week 5. The claimants contended that, since they were not recalled to work until Tuesday of week 6, whereas the strike at Kenosha ended on Wednesday of week 5, they were eligible for partial benefits for weeks 5 and 6, as when the strike terminated their ineligibility terminated. The commission rejected such contention and the court agreed noting that, under the statute, and according to the consistent interpretations thereof, a strike existing in a portion of a week disqualified for the entire week, as the statute by its terms disqualified "for any week in which such strike...is in active progress." The court further noted that Chapter 108 did not permit payment of benefits for anything less than a calendar week beginning on Sunday and ending on Saturday. (1)

In Elliot et. al. v. General Motors Corp. & Ind. Com., No. 112- 243 (Wis. Cir. Ct. Feb. 3, 1964), the employes lost work due to a strike by an international union with which the company had contracts. The court again affirmed the commission's denial of benefits for an entire week where the settlement of the strike was ratified on Tuesday stating "as the suspension is effective under the statute in the whole of any calendar week in any part of which a labor dispute is in active progress."

The commission therefore finds that in weeks 32 through 34 of 1997 the employes left or partially or totally lost work with the employer because of a strike or other bona fida labor dispute, other than a lockout, in active progress in the establishment in which the employes were employed, within the meaning of Wis. Stat. § 108.04(10)(a).

DECISION

The decision of the administrative law judge is set aside. The employes are ineligible for benefits in weeks 32 through 34 of 1997. They are eligible for benefits thereafter, if they are otherwise qualified.

Dated and mailed: November 11, 1998
armbrro.urr : 132 : 1 LD 550

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission's decision does not involve any disagreement with the administrative law judge's assessment of witness credibility or demeanor. The commission has reached a different legal conclusion when applying the law to the facts.


Footnotes:

(1)( Back ) The decision was made prior to the 1963 amendment which is now the exception contained in Wis. Stat. § 108.04(10)(c).


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