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

DANIEL L LONGSINE, ET AL Employees

BRUNSWICK CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09002675FLG


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

These cases involve approximately 500 employees of the employer in the bargaining unit represented by District 10 and Lodge 1947 of the International Association of Machinists (the "Union"). (Stipulation of Fact No. 1). From December 19 through 23, 2008 (weeks 51 and 52), the employer temporarily laid them off. They returned to work on January 5, 2009 (week 2). (Stipulation of Fact No. 2). Pursuant to the collective bargaining agreement between the parties, December 24, 25 and 26 were paid holidays in week 52 of 2008 and December 29, 30 and 31 and January 1, 2009 were paid holidays for week 1 of 2009 (Stipulation of Fact No. 3). Because paid holidays included December 24, 25, 26, 27, 29, 30 and 31 and January 1, 2009, the employer did not require the employees to work those days. (Stipulation of Fact No. 6). At the end of week 52 of 2008 and week 1 of 2009, the calendar weeks ending December 27 and January 3, respectively, the employer paid out all holidays occurring during each week (Stipulation of Fact No. 5).

Pursuant to Article 7.1 of the collective bargaining agreement in effect between the parties, 2008 holidays included December 24, 25, 26, 29, 30 and 31. In 2009, paid holidays included January 1st. (Stipulation of Fact No. 3).

Article 7.8 of the collective bargaining agreement provides:

Employees on layoff or leave of absences shall not be entitled to Holiday pay except as provided below:

A. If an employee (other than Probationary) is laid off for lack of work, he or she shall be eligible for any Holiday pay falling within the ninety (90) calendar days following such layoff provided that they are recalled and they return to work within one year from the date of layoff and work at least (5) work days.

(Stipulation of Fact No. 4).

For purposes of determining partial unemployment benefit eligibility, holiday pay is treated as wages for a given week only if it has become definitely payable to the employee within four days of the close of that week or within 9 days of the close of a week that includes December 25. Wis. Stat. § 108.05(4)(a)1. and 2. Accordingly, the issue is whether the payments the employees received should be treated as wages for benefit purposes for the two weeks at issue.

The employees' counsel noted that under the parties' collective bargaining agreement, employees on layoff became eligible for holiday pay only after being recalled to work and working a minimum of five days within one year after their return from layoff. The employees' counsel contended the payments were not definitely payable and therefore did not constitute wages within the meaning of the statute because the employer made them before it was contractually obligated to do so. The commission agrees.

The collective bargaining agreement sets forth contingencies that must be met before workers were eligible for holiday pay. At the time the employer paid the workers, those contingencies had not been met. The department's Disputed Claims Manual provides, in relevant part:

Was the holiday pay definitely payable?

Holiday pay is payable when the employee has an irrevocable right to receive such pay. When holiday pay is contingent upon a future act, such as returning to work, it is not considered payable until that contingency is met.

It is treated as wages, for partial benefit purposes, when the right to the pay is established within a prescribed time.

Establish holiday pay is payable within four days of the close of the week in which the holiday(s) occur.

Establish all holiday pay for the week that includes December 25 is payable within nine days of the close of the week in which the holiday(s) occur.

Disputed Claims Manual, Deductible Income: Holiday Pay, Part II., Section B.

The payments in this case were not made within the contractual limitations set forth in the collective bargaining agreement. Given the language of the collective bargaining agreement, the employees did not have an irrevocable right to receive such payments. The employer was free to designate the payments as "holiday pay" but that did not change the fact that those payments were not "definitely payable" under the collective bargaining agreement. Therefore the payments did not constitute "holiday pay" that is treated as wages within the meaning of Wis. Stat. 108.05(4)(a). Further, if "definitely payable" or "payable" is synonymous with "paid" there would be no reason to use both when determining whether certain payments are deductible income.(1)

The commission therefore finds that in week 52 of 2008 and week 1 of 2009, the employees did not receive holiday pay that reduces their benefit entitlement in those weeks, within the meaning of Wis. Stat. § 105.05(4)(a).

DECISION

The decision of the administrative law judge is reversed. Accordingly, in week 52 of 2008 and week 1 of 2009, the employees did not receive holiday pay treated as wages for those weeks. The employees are eligible for benefits in week 52 of 2008 and week 1 of 2009, if they are otherwise qualified.

Dated and mailed March 31, 2010
longsda : 132 : 5 : UW 995

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not consult with the ALJ as his decision was based on a stipulation of facts. A department witness did testify on the issue of employer fault/departmental error. However, those issues are moot because the employees are found eligible for benefits in the weeks at issue. Further, given the commission's resolution of the matter, the three groups of employees are treated the same.

cc: Attorney Nathan D. Eisenberg
Mercury Marine


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Footnotes:

(1)( Back ) Wis. Stat. 108.05(5m), provides that sick pay is wages when "paid or payable."