THOMAS J WIDZINSKI, Claimant

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.

The decision of the administrative law judge is affirmed. Accordingly, as of week 36 of 2007, benefits otherwise payable for any week of partial or total unemployment are reduced by a wage amount of $692.40.

Dated and mailed March 7, 2008
widzith . usd : 132 : 1    UW 980  UW 990

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employee does not pay taxes on the contributions the employer makes to the union for his pension. The arrangement whereby the employer makes the contribution to the union or a designated fund is not unfamiliar to the commission. Ardell Helland, cited in the appeal tribunal decision involved a union worker and pension contributions made by the employer out of the worker's total wage compensation. The arrangement by which the pension contribution was made in this case is similar to others the commission has reviewed, including that in Murphy v. LIRC and Miron Construction Company, Inc., Case No. 06 CV 125 (Wis. Cir. Ct., Oconto Co., June 18, 2007).

In Murphy, the claimant was a member of the Wisconsin Carpenter's Union and received monthly pension payments from the Wisconsin Carpenters' Pension Fund. When he worked for the employer, it paid him a "normal hourly rate" for his wage, and also made hourly-based contributions to various funds including to the WCPF. The contributions were made without deductions for federal or state taxes and no unemployment tax was paid on the amount contributed. The amounts the employer were required to pay to the claimant and to the WCPF were negotiated between the claimant's union and the Associated General Contractors (AGC) of Wisconsin. The claimant Murphy made arguments similar to those made by the employee in this case:

Plaintiff alleges that the only wage item negotiated between his union and AGC is the "Normal Hourly Total" to be paid for each hour worked by a carpenter, millwright, or pile driver. He further alleges that after the "Normal Hourly Total" is negotiated, his union representatives unilaterally determine how much of that figure will be allocated to the WCPF, and then they inform AGC of their decision. According to plaintiff, the AGC contractors then simply follow the union's dictate and contribute this hourly amount to the WCPF, making the contractors mere conduits through which the employees' "own funds" pass on their way to the WCPF. In other words, plaintiff asserts that the money contributed to the WCPF was his own money, and therefore his pension is composed entirely of his own contributions. The court cannot accept plaintiff's allegations or arguments.

The court affirmed the commission's finding that the contributions were made by the employer and not the employee.

The commission most recently reaffirmed its position that if a contribution is from an employee's taxed compensation it is considered a contribution by the employee. However, if the source of the contribution is a pre-tax contribution, the department considers that contribution to be employer funded. Zimmerman v. Army, UI Dec. Hearing No. 07200677EC (LIRC Oct. 26, 2007).

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uploaded 2008/03/17