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


LARRY A RIEMER et al, Employes

WISCONSIN CONCRETE PIPE & CULVERT CO INC, Employer 

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 95400119MNG


An administrative law judge (ALJ) for the Unemployment Compensation Division of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The three employes at issue here all worked as laborers for the employer, a manufacturer of pre-cast concrete products used in street construction. Their last days of work were June 17, 1994 (week 25).

The employer’s plant workers were represented by Local 1086, Laborers’ International Union of North America. On May 31, 1993, the employer’s contract with the union expired. Negotiations then began and were ongoing at the time of the hearing. The plant workers, including the employes, went on strike on June 20, 1994 (week 26). Picketing began at the employer’s plant and continued until September 4, 1994 (week 37). The employer hired replacement workers the same week the picketing began. The union’s business agent and business manager terminated the strike on Sunday, September 4, 1994 (week 37). The union’s business agent notified its members that the strike was no longer in existence and they should return to work. In the fall of 1994, all but six of the sixteen represented workers had returned to work, the remaining workers, including the employes, did not return because they had found other employment. At a negotiation session occurring on October 27, 1994, the union’s business agent noted that the strike was off and the workers were told to return to work. From the last week of November until March the employer lays off all but five workers because business is slow.

Employe Riemer did not return to work for the employer because he was working for Gabes construction from August 8, 1994, until laid off on December 23, 1994. Riemer did apply for work for the employer when laid off in December but was told that the employer was not taking applications.

Employe Hansen did not return to work for the employer because he was working for Gabes construction from August 1, 1994, until laid off on December 28, 1994. Hansen did apply for work for the employer when laid off in December but was told that the employer had no work available until March or April.

Employe Jaschob did not return to work for the employer because he was working for Gabes construction from August 16, 1994, until laid off on January 13, 1995. Jaschob did apply for work for the employer when laid off in January but was told that business was slow.

The initial issue is whether the employes left or lost their employment because of a strike or other bona fide labor dispute which was in active progress in the employer’s establishment.

The commission finds that the employes herein did lose their employment on June 20, 1994(week 26), due to a strike in active progress in the employer’s establishment. That strike continued until September 4, 1994 (week 37), when the union called off the strike and directed its workers to report for work. Accordingly, the employes are ineligible for unemployment benefits in weeks 26 through 36 of 1994.

The second issue to be decided is whether the employes are eligible for benefits despite their failure to return to work for the employer at the conclusion of the strike.

In Marathon Electric Manufacturing Corp. v. Industrial Commission, 269 Wis. 394 (1955), the court noted that a strike or other bona fide labor dispute, even where the employer has replaced striking workers during the dispute, does not result in the loss of status as an employe, but merely a loss of work. The court stated that “Such a result is necessary in the absence of a specific discharge because it is impossible to determine with any certainty until the economic strike is over the identity of those strikers who will offer to return and which of those who offer will not be accepted by the employer.” Marathon, 269 at 183-184.

So too here, the actions of the employes during the strike in seeking additional employment did not in and of itself serve to terminate their employe status. Not until the employes failed to return at the cessation of the strike did their actions serve to terminate the employment relationship. While the strike was ongoing they were employed by the named employer and the other employing unit. When the strike ended they chose to retain that other employment rather than commence performing services for the named employer. They made a voluntary decision to sever the employment relationship with the named employer and therefore must be held to have quit their employment with the named employer.

Section 108.04(7)(b), Stats., provides that an employe who voluntarily terminates his or her employment is eligible for immediate benefit payment if the termination was with good cause attributable to the employing unit. “Good cause attributable to the employing unit” means some act or omission by the employer justifying the employe’s quitting; it involves “some fault” on the part of the employer and must be “real and substantial.” Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W. 2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W. 2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W. 2d 587 (1979)). For the exception to apply, the quitting must be “occasioned by” the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W. 2d 412 (1965)). Moreover, good cause should not be construed so as to encompass a situation in which an employee has created the very cause for which he is justified in quitting. Hanmer, 92 Wis. 2d at 99.

In this case, there was no unreasonable act or omission on the part of the employer that prevented or dissuaded the employes from returning to work for the employer. Indeed, it was the employes’ decision to strike that resulted in employment with another employing unit and led to their decision to remain at that other employment rather that to retain their employment with the named employer. Finally, to find an employe who fails to return to work under these circumstances eligible for benefits would be contrary to the purpose of sec. 108.04(10), Stats., namely, to protect employers from having to finance a strike against itself.

The commission therefore finds that in weeks 26 through 36 of 1994, the employes left or partially or totally lost their employment because of a strike or other bona fide labor dispute, other than a lockout, in active progress in the establishment in which the employes are or were employed, within the meaning of sec. 108.04(10)(a), Stats.

The commission further finds that in week 37 of 1994, the employes voluntarily terminated their employment with the named employer within the meaning of sec. 108.04(7)(a), Stats., and that their quitting was not for any reason constituting an exception to that section.

The commission further finds that employe Jaschob requalified for benefits as of week 48 of 1994, that employe Riemer requalified for benefits as of week 52 of 1994, and that employe Hansen requalified for benefits as of week 53 of 1994.

DECISION

The decision of the administrative law judge is modified and, as modified, is affirmed. Accordingly, employe Jaschob is ineligible for benefits in weeks 26 through 47 of 1994 and eligible for benefits as of week 48 of 1994, if otherwise qualified; employe Riemer is ineligible for benefits in weeks 26 through 51 of 1994 and eligible for benefits as of week 52 of 1994, if otherwise qualified; and employe Hansen is ineligible for benefits in weeks 26 through 52 of 1994 and eligible for benefits as of week 53 of 1994, if otherwise qualified.

If the employer is subject to the contribution requirements of the Wisconsin unemployment compensation law, any benefits payable to the employes based on work performed for the employer prior to the quitting will be charged to the fund’s balancing account.

Dated and mailed: August 29, 1995
riemela.urr : 132 :  LD 580  VL 1005

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner


MEMORANDUM OPINION

The commission did not consult with the administrative law judge as its modifications of the appeal tribunal decision do not depend on witness credibility or demeanor but are done as a matter of law.

cc:
MILES MERTENS
LOCAL 1086

THOMAS KLEIN
LOCAL 1086

ATTORNEY FRED MINER
PREVIANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGMAN

ATTORNEY DOUGLAS WITTE
MELLI WALKER PEASE & RUHLY

LARRY RIEMER

ROBERT JASCHOB

BRIAN HANSEN


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