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


RONALD J REISER, Employe

and

RUSSELL C WINCHEL, Employe

ASSOCIATED TRAINING SERVICES CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001773MDG


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, employes Reiser and Winchel are ineligible for benefits beginning in week 11 of 1999, based on wages paid for employment prior to the commencement of the dispute while such strike or bona fide labor dispute, other than a lockout, is in active progress.

Dated and mailed November 5, 1999
reisero.usd : 132 : 1 LD 500  LD 520

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employes have petitioned for commission review of the administrative law judge's decision which found that they were ineligible for benefits pursuant to Wis. Stat. § 108.04(10)(a) because they lost their work due to a labor dispute in active progress. The employes argue that they were constructively locked out of their work and should be eligible for benefits under Wis. Stat. § 108.04(10)(d). The commission disagrees. The employer's threat to shut down its business did not force the employes to go on strike. The employes could have reported to work and tested the employer's resolve. Further, the March 26, 1999 letter reinforced the fact that the employer had work for them to perform if they were willing to do so. In addition, the courts and commission have previously rejected the concept of a constructive lockout. In Trinwith v. LIRC, 149 Wis.2d 634 (Ct. App. 1989), the court affirmed the commission's finding that the term "lockout" was unambiguous and that the ordinary and accepted meaning of "lockout" was that the employer actually barred employes from working. The court noted that, unlike the labor dispute statutes of other states, the Wisconsin statute "does not require inquiry into the cause of the strike or stoppage, it only requires inquiry into whether a `barring' from employment occurred." Trinwith, 149 Wis.2d at 644.

The employes further argue that they should be eligible for unemployment insurance because the reason which led to them taking action was "for good cause attributable to the employer." However, that standard applies to situations where a separation from employment has occurred, specifically, a quitting. Courts have noted that a strike or labor dispute does not result in the loss of status as an employe, but merely the loss of work. Rice Lake Creamery Co. v. Industrial Comm., 15 Wis.2d 177 (1961). Thus, during the active progress of the strike, which began in week 11 of 1999, the employes had not lost their status as employes, but only their work with the employer. If the employes had voluntarily terminated their employment there would have been no purpose in notifying the employer that they were ending the strike.

Finally, the complaint to, investigation by, and order of the National Labor Relations Board are not relevant or persuasive in determining the employes' eligibility for unemployment insurance. See Bernhardt v. LIRC, 207 Wis.2d 292 (Ct. App. 1996). Application of Wis. Stat. § 108.04(10)(a), does not deny the employes benefits once the dispute is over nor does it require the employes to requalify for benefits. It simply provides that during the active progress of a labor dispute, or strike, the employes cannot use the wages earned from the employer to qualify for unemployment benefits. The arguments the employes present in their petition about the unfairness of the employer's actions are not appropriately addressed to the commission. The issue for the commission is not whether there was an unfair labor practice, but whether there was a labor dispute. As the Wisconsin Supreme Court stated in Marathon Electric Mfg. Corp. v. Industrial Comm., 269 Wis. 394 (1955):

"Since the enactment of the first Unemployment Compensation Law in 1931, the law has contained a provision suspending eligibility of workers unemployed because of a strike or a bona fide labor dispute. The labor-dispute provision constitutes a `neutrality act' which the legislature inserted into the act. It is to be borne in mind that the Unemployment Compensation Act was prepared by representatives of labor and management and the public. In designing this legislation, it was the fear of both employer and employee representatives that payment of unemployment compensation, unless appropriate safeguards were taken, might prove to be an instrument which might be inappropriately used, their respective interests considered, in an industrial controversy. An analysis will show the wisdom from both the standpoint of labor and of management of suspending benefit payments in any situation in which these industrial forces are engaged in a bona fide controversy. This suspension of benefits places the administrative agency in a neutral position with respect to the contending forces.

"Under the Wisconsin law, employer contributions finance the unemployment benefits paid to workers. Management, therefore, is not desirous that the funds built up by it could be used to finance a strike or other form of labor controversy directed against it. Present law takes a `hands off' approach. It stays neutral. It does not require that the administrative agency determine the merits of the labor dispute. If there is a controversy or labor dispute, then the disputants, are ineligible for unemployment benefits during the active progress of such dispute."

Marathon Electric, 269 Wis. at 405.

cc: SASHA GORMAN
UNION REP


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