Wis.LIRC UC Decision: Hanseder, James - April 10, 2000 - VL 1007 SW 844 - definite vs. indef. layoff period; VL 1007.01- Quit vs. Discharge/Layoff, general -- layoff for definite period does not sever relationship, refusal to return thus a quit - definiteness of recall based on seasonal patterns

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

JAMES T HANSEDER, Employe

LIEDS NURSERY CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00400393AP

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

The employe worked as a foreman for the employer from about April of 1998, though January 4, 1999 (week 2). On January 4, 1999 he was laid off for the season with an expected recall date to his landscaping position at the beginning of April of 1999. However, he remained on-call to perform snow plowing for the employer. He plowed snow for the employer on two occasions thereafter. He accepted a higher-paying job with another landscaping business during his layoff with the employer. He gave notice to the employer on or about February 27, 1999 (week 9), that he would not be returning to work for the next landscaping season.

The initial issue to be decided is whether the employe voluntarily terminated his employment or was discharged. The second issue to be decided is whether he is eligible for benefits based on his separation from employment.

An employe who is indefinitely laid off from employment is considered to have been discharged by the employer. On the other hand, a definite layoff does not sever the employment relationship. The commission finds that the employe was not discharged when laid off from his regular position on January 4, 1999.

In Hemstock Concrete Products, Inc. v. LIRC, 127 Wis.2d 437 (Ct. App. 1985) the court dealt with the issue of whether a layoff without a definite date of recall severs the employment relationship. In Hemstock, the employer's sales declined sharply each winter when its principal customers were unable to work because of inclement weather. As a result, each winter the employer laid off most of its production and delivery workers for two or three months. The layoff procedures, which were specified in collective bargaining agreements with the employes' unions, gave all employes the right to continue their health insurance and other fringe benefits during the winter layoff. Except for one year the employer had recalled all of its employees each spring to perform the same jobs at the same salary as before the winter layoff. In the winter of 1982 the collective bargaining agreements had expired, but the employer implemented layoffs in accordance with the terms of the agreements and practices it had followed over the years. In December, 1982, the employer told the employes that the winter layoff was expected to extend from January 3 to March 18, 1983. In February, the employer told the union steward that production would resume on March 14, and that a few employes would be recalled a few days ahead of time for preliminary work. On March 4 and 5, 1983, the company directed a small group of employes to report on the 7th to begin preparations for the resumption of production. On March 7, the union went on strike, without advance notice to the employer. The employer then sent recall notices to all employes, requesting them to return to their regular jobs immediately. Neither the employes nor the unions responded, and the employer began hiring replacements. The commission held that even though the employer's employes may have had a "definite expectation of being recalled in the spring" at a date that was "generally predictable," the layoff was indefinite because recall dates had varied in past years, and, in 1983, no precise recall date was established until after the strike had begun. The court disagreed stating:

"A specific recall date is not necessary to reestablish an employment relationship if that relationship was never severed in the first instance. There is a presumption that a layoff severs the employment relationship, but both the commission and the court have recognized that the presumption may be rebutted by "evidence that at the time of layoff there existed an assurance, expressed or clearly implied by circumstances, that work and wages would be resumed at an ascertainable time in the not too distant future." Hermann v. Miller Brewing Company, Hearing No. 18852, Decision No. 54-A-38 (Industrial Commission of Wisconsin, Dec. 18, 1953), quoted with approval in A.O. Smith, 88 Wis.2d at 267, 276 N.W.2d at 282.

"The distinction between indefinite and temporary layoffs was recognized in A.O. Smith. There, the court commented on the facts of a Michigan case - where the employees understood that they would be recalled as soon as materials necessary for the resumption of production became available - stating that under such circumstances, "under Wisconsin law it would be clear that the . . . workers were not in an indefinite-layoff status." Id. at 269, 276 N.W.2d at 283.

"The situation here is similar to that in the Michigan case. Hemstock's employees understood the layoffs to be temporary and that they would receive recall notices as soon as the spring weather permitted. They had a definite expectation of being recalled within the foreseeable future. A winter layoff, with 100 percent employee recall in late March or April, was the company's routine practice over the years. The duration of the layoff was ascertainable; it had a definite ending point - the onset of weather that would permit outdoor work - even though the employees did not know the precise 1983 recall date until at or about the time the strike was called. Moreover, the fact that Hemstock regularly called all employees back to the same jobs at the same wages and that employee benefits could continue during the off season is evidence that there was an ongoing employer-employee relationship. The employees were on temporary layoff, and it is immaterial that they went on strike before actually receiving their recall notices."

Hemstock, 127 Wis. 2d at 441-443 (footnotes omitted).

The court in Hemstock further noted that the commission had previously recognized that a layoff may be temporary even where, at its commencement, it does not have an exact, or even an ascertainable, duration. The layoff need only be short enough, and the recall definite enough, to justify a conclusion that the employment relationship continues. Thus, although the exact length of the layoff was unknown, as long as its duration could be predicted with reasonable accuracy, the employment relationship continued during the layoff.

This case does not involve a collective bargaining agreement or such a consistent history of recall as in the Hemstock case. However, like Hemstock the layoff was seasonal with an ascertainable and expected, although not precise and guaranteed, date of recall. Further, the layoff here was only a few weeks longer than the layoff in Hemstock. The employe had a definite expectation of being recalled on or about April 1, weather permitting. For these reasons the commission finds that the employe's employment continued after January 4, 1999.

The employe gave notice of quitting on February 27, 1999 (week 9). That was not, however, the effective date of his quitting. Rather his quitting was effective on that date on which it was anticipated that the employer would again have his normal work available for him, April 1, 1999 (week 14).

The commission finds that the employe quit his employment with the employer effective April 1, 1999 (week 14), to accept more favorable employment within the meaning of Wis. Stat � 108.04(7)(L). Under the unemployment insurance law the employe is not eligible for benefits until he earns at least four times his weekly benefit rate in such subsequent employment. Department records reflect that the employe requalified for benefits as of week 40 of 1999.

DECISION

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employe is eligible for benefits in weeks 2 through 13 of 1999. He is ineligible for benefits beginning in week 14 of 1999 and until he earns at least four times his weekly benefit rate in subsequent covered employment. As of week 40 of 1999 he is again eligible for benefits, if otherwise qualified.

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

Dated and mailed April 10, 2000
hanseja.urr : 132 : 6 : VL 1007 SW 844

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission does not disagree with any credibility determination made by the ALJ but reaches a different legal conclusion when applying the law to the facts.

cc: LIEDS NURSERY CO INC

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