UC Decision Digest - 1991-1994 case summaries; plaintiff names S - Z  

This file contains  the summaries of court decisions collected in the 1991-1994 edition of the Unemployment Compensation Decision Digest  for cases with plaintiff names beginning with S through Z.

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Ryan R. Salzer v. LIRC, No. 92-CV-003-768 (Wis. Cir. Ct. Milwaukee County December 1, 1992)

Claimant worked for a number of years in various capacities for Briggs and Stratton. While on layoff from June 2, 1991 (week 23) until he returned to work on September 9, 1991 (week 37) claimant filed claims for U.C. benefits.

On June 24, 1991 (week 26) claimant broke his left big toe. He saw a doctor on three occasions and was released by the doctor to return to work on July 23, 1991 (week 30). In addition to filing claims for U.C. and reporting that he was able and available for work, he notified the employer of his injury and was paid sick leave benefits until he was released by the doctor. Claimant followed his doctor's instruction to remain off his feet while he was on sick leave and during that period he did not look for or apply for work.

Claimant's employer questioned his eligibility for U.C. while he was on sick leave. Two determinations were issued. One held that claimant was ineligible for benefits paid to him for weeks 26 through 29 because he was not able to work due to an uncontrollable restriction as a result of his injury. The other determination assessed a $1,125 forfeiture for concealing a material fact relating to his eligibility for benefits.

The ALJ and LIRC affirmed both determinations. Claimant commenced an action for judicial review on the concealment decision only.

Held: Affirmed. Although claimant claims he could have worked full-time at various jobs while he was on sick leave, the ALJ's decision correctly set forth that claimant concealed a material fact relating to his eligibility for benefits. The commission's MEMORANDUM OPINION agreed. The findings are supported by credible and substantial evidence.

Carol A. Sanderfoot v. LIRC and Appleton Area School District, No. 90- CV-638 (Wis. Cir. Ct. Outagamie County January 23, 1991) 

The employe worked about one and one-half years as a teacher for the employer school district. During the 1987-88 school year she held a six-tenths position. At the end of that school year she was not renewed but offered and accepted a two- tenths position for the 1988-89 school year. She taught summer school in 1988 and filed claim for benefits in week 31 of 1988. The department determined that her 39 weeks of work for the employer with wages of $11,993.75 resulted in a weekly benefit rate of $154 and that because she did not have reasonable assurance, she was eligible for benefits.

The 1988-89 school term commenced in week 36, of 1988 and ended in week 23 of 1989. In the employe's two-tenths position she taught one class at the same time each school day for which she was paid $114.93 a week. In week 40 of 1988 she commenced working six to eight or more hours a week for the Fox Valley Technical College at $11 an hour in addition to her job with the employer. She also obtained a third job with another employing unit in April, 1989. She had a guarantee of work in the week before and the week after each vacation period. The employe was paid benefits based on total or partial unemployment.

In week 48 of 1988 (Thanksgiving week), the employe worked three days and was off on Thursday and Friday because both schools were on vacation. In week 53 of 1988 both schools were closed for Christmas vacation. School resumed for the employer on Tuesday in week 1 of 1989 and for the vocational school on Monday in week 2 of 1989. She returned to work for each school when the vacation period ended. In week 12 of 1989 the employe worked Monday through Thursday. She was off on Friday (Good Friday) and the following week when both schools were closed for Easter vacation.

Benefits were denied at all administrative levels for weeks 48 and 53 of 1988 and weeks 1, 12 and 13 of 1989 on the ground that she worked in an instructional capacity performing services immediately before an educational institution's customary vacation period or holiday recess and she had reasonable assurance of performing such services immediately following, as provided by sec. 108.04 (17)(c), Stats. The commission's MEMORANDUM OPINION pointed out that the employment compared for reasonable assurance purposes was the period immediately before and immediately after. This was contrary to the employe's contentions that based on the words "such services," the reasonable assurance comparison was to be based on base period employment and the employment to be resumed immediately after the vacation or holiday recess.

Held: Reversed. The facts are undisputed. The issue raised is of recent origin so based on the standards of judicial review as to questions of law, the commission's decision is only entitled to due weight. Section 108.04 (17)(c), Stats., is ambiguous so statutory construction may be used. The statute may be interpreted to refer only to a comparison of employment immediately before and after the vacation or holiday period or it may also be interpreted to refer to that employment which made the employe eligible for benefits initially. A narrow interpretation of this remedial statute should be used. A fair interpretation of the statutory language requires that the exclusion of benefits be applied only if the employment immediately before and after a vacation period is substantially the same as the employment which makes the employe eligible for benefits in the first place.

(The above reversal was consolidated with the affirmance in James G. Wanish v. LIRC and Wittenberg-Birnamwood School District, No. 90-CV-306 (Wis. Cir. Ct. Marathon County Oct. 8, 1990) 9398, in published affirmance of Sanderfoot and reversal of Wanish, 163 Wis. 2d 901.472 N.W.2d 596 (1991 Ct. App), 9410, petition to review denied, 163 Wis. 2d Lvii.)

Rose M. Payton Schiller v. Craig W. Shirley, SC, and State of Wisconsin by LIRC, No. 90-CV-163 (Wis. Cir. Ct. St. Croix County August 14, 1991) 

The employe worked as a receptionist and clerical worker in the employer's dental office until she was discharged. Her duties included billing patients or their insurance companies for work performed. The employer found many occasions where the employe failed to perform this work resulting in actual and potential loss to the employer.

The employer has rules providing for progressive discipline which the employer did not follow. The employe's errors and omissions were brought to her attention however when they were discovered and the employer did not condone her actions. Her errors and omissions continued and she was discharged.

The employe had the ability to do the work and her inadequate performance was the result of her failure to follow simple orders clearly given.

The ALJ reversed the initial determination and denied benefits. LIRC modified and affirmed the denial of benefits.

Held: Affirmed. A review of the record shows evidence of a recurring pattern of failure by the employe to perform her job duties, even after she was told of her errors. The findings of fact are supported by the evidence even though other evidence would support other findings. The employe had the ability to do the tasks assigned and her errors and omissions continued after they were called to her attention. Those facts support the conclusion that the employe was discharged for misconduct connected with her employment.

Lynnea Schliesleder (nee Cox) v. LIRC, No. 94-SC-1026 (Wis. Cir. Ct. Small Claims Waukesha County April 6, 1994)

An initial determination held that plaintiff (employe) quit her employment with Bruce L. Wignall but not for a reason which allowed the payment of benefits. The employe's appeal was postmarked one day after the appeal period expired and received two days after the appeal period expired. The ALJ's dismissal decision was affirmed by LIRC. The employe commenced a small claims court action but failed to name her employer as a party defendant, as well as a number of other defects.

The commission served a motion to dismiss on the grounds that Small Claims Court lacked jurisdiction to consider an action for judicial review under secs. 108.09 (7) and 102.23, Stats.; that the Summons and Complaint Small Claims form did not comply with the form of a Small Claims Court summons provided by sec. 799.05 (6), Stats., (although it complies with the court commissioner form of sec. 799.05 (7), Stats.); that the employer, an adverse party, was not named as a party defendant; that the complaint failed to set forth a cause of action; and that plaintiff had failed to file a claim against the state and no bond had been posted as required by sec. 775.01, Stats.

Held: Motion granted but solely on the ground that the employe failed to name her employer as a party defendant as required by sec. 102.23 (1)(a), Stats. and Brandt v. LIRC, 166 Wis. 2d 623, 480 N.W.2d 673 (1992). Motion was denied on all other grounds advanced.

Steven G. Schlobohm v. LIRC, No. 92-CV-1526 (Wis. Cir. Ct. Dane County January 29, 1993) 

Claimant was disqualified from eligibility for emergency UC benefits for failure to make an active, systematic and sustained search for work when, in one week, he made contact with two prospective employers on one day and no other contacts that week. ATD and LIRC affirmed the disqualification. Claimant argued to the court that (1)the "two contacts on two days" standard on the basis of which he was disqualified, was in effect an administrative rule which was not adopted validly under Ch. 227; (2) the "active, systematic and sustained search" requirement is ambiguous and does not support a "two contacts in two days" construction, and his contact of two employers on one day in fact satisfied the statutory standard; (3) if construed as requiring two contacts in two days, the "active, systematic and sustained search" requirement is unconstitutional as applied because it violates the equal protection clause to distinguish between those who make two contacts in two days and those who make two contacts in one day.

Held: Affirmed. The challenge to the "two contacts in two days" interpretation as an invalid rule will not be considered because it was not raised before the commission. The commission's interpretation of the "active, systematic and sustained search" language as requiring two contacts in two days is entitled to great weight because it has been long continued, substantially uniform and without challenge by government authorities and courts. It is also consistent with the common sense meaning of the words "systematic and sustained", as well as being consistent with interpretations of the U.S. Department of Labor, which are relevant in interpreting provisions of Wisconsin's U.C. Act which have been adopted to meet conformity requirements. The minimal "rational basis" standard applies to the constitutional challenge because no suspect classification or fundamental interest is implicated, and there is a rational basis for a "two contacts in two days" interpretation as it furthers the goal of fiscal stability of the program by requiring claimants to make a concerted effort to find work as soon as possible.

NOTE: While this decision reaffirms the validity of a "two contacts in two days" standard, it leaves open the question of the validity of the department's promulgation of this standard as a "policy" without compliance with the rule-making procedures of Ch. 227. However, if similar disqualifications are explained as being on the basis of the decision maker's interpretation and application of the statutory "systematic and sustained search" language to the facts of the particular case before them, rather than on the basis of the department "policy," this question will not be presented.

Bruce R. Schroeder v. Cray Research, Inc. and DILHR, No. 92-CV- 203 (Wis. Cir. Ct. Chippewa County August 13, 1992)

The employe petitioner's action for judicial review lacked a summons and failed to state a course of action. LIRC moved to dismiss.

Held: Motion granted. The statutes require that the action for judicial review be commenced by serving a summons and that a course of action be set forth in the complaint.

Jill M. Schroeder v. LIRC and Cicena, Inc., No. 92-CV-1010, (Wis. Cir. Ct. Dane County September 30, 1992)

The employe worked about four months for the employer. She filed a complaint with the Madison Equal Opportunities Commission on or about October 15, 1991, and quit her employment on November 5, 1991, on the advice of her attorney. An initial determination suspended benefit eligibility on the ground that her quitting was not within any exception that would allow the payment of benefits. She appealed and requested a hearing.

Several days after hearing notices were mailed to the parties and their attorneys, the employer's attorney notified the hearing office and the employe's attorney by letter that the employer withdrew its objection to the employe's request for U.C. The employer's attorney also acknowledged the hearing but stated: "I will assume that this hearing will be taken off the calendar unless I hear otherwise from you. In any event, neither I nor my client intend to attend that hearing on that date."

Affidavits of hearing office personnel established that after two attempts to contact the employer's attorney in response to his letter, a message was left that the hearing would continue as scheduled as a respondent cannot withdraw the denial of benefits. The affidavits also provided that because of the information on the hearing notice that the appeal would be dismissed if the appellant failed to appear and that an appellant could withdraw the request for hearing, the employe's attorney was not contacted.

There were no appearances at the hearing scheduled ten days later and the ALJ dismissed the employe's appeal, as provided by sec. 108.09 (4)(c), Stats.

The employe's attorney notified the ALJ by letter that his client and the employer had entered into an agreement whereby the employer would withdraw its objection to the employe's U.C. claim and the employe would not commence litigation against the employer. He also referred to the letter from the employer's attorney and stated he had informed his client that she would not have to attend the hearing. He requested that the dismissal order be suspended or that the dismissal order be reopened.

The ALJ set aside her dismissal decision and subsequently issued a decision based on the information submitted by the employe's attorney. That decision held the employe failed to establish good cause for failure to appear at the hearing based primarily on the information provided to all the parties in the hearing notice. LIRC affirmed setting forth rationale in its Memorandum Opinion.

Held: LIRC decision set aside and case remanded to another appeal tribunal to apply the correct standard in determining if another hearing is warranted. The ALJ and LIRC applied the good cause standard. The correct standard is probable good cause.

Dale Schultz v. LIRC and Crossroads Express, Inc., No. 90-CV-17 (Wis. Cir. Ct. Clark County February 7, 1991) 

The employe worked as a truck driver for the employer for three weeks in 1988 and from January, 1989. On Friday, September 22, 1989 the employe called the employer from New York to report on a delivery. The employer told him that it had a load for the following Wednesday. The employe advised that he would take the load if they could not get someone else. On Monday he was told that the load pickup time was 9 a.m. and no one else had been found to drive.

The employer called the employe at about 7 a.m. on Wednesday to see if he could take the load at 8 a.m. instead of 9 a.m. The employe refused to take the load. When he next contacted the employer for a load on Friday the employer told him that it had assumed he quit and had replaced him. The commission determined the employe was discharged for misconduct.

Held: When the employe agreed to take the load unless the employer found someone else, he became responsible for the load. The record does not indicate bad faith on the part of the employer. The employe's failure to take this perishable load for this important client of the employer amounted to misconduct.

Schultz Sav-O Stores, Inc. v. LIRC and Michelle M. Harden, No. 92-CV- 937 (Wis. Cir. Ct. Sheboygan County August 9, 1993) 

The employe had worked for 20 years for the employer, a grocery store. After recovering from a work-related injury he returned to work in March 1991, and was assigned to one of the employer's new grocery stores. He worked in the produce department on the second shift, and since the produce department manager only worked on the first shift, the employe had no contact with him. The employe testified that he learned from co-Worker's that loose grapes found in shipping cases were thrown out. Beginning in April 1991, he would occasionally place these loose grapes in a clear plastic bag and remove them from the store in full view of the security guard and other employes. It was uncontroverted that he donated these loose grapes to a shelter for battered women and children.

On August 20, 1991, the security guard stopped the employe as he was walking out of the store carrying a clear plastic bag with nine pounds of loose grapes in it. The grapes were confiscated and the employe was discharged two days later. The employer asserted that it was store policy that such loose grapes were to be separately wrapped and sold at a reduced price. Alternatively, it was asserted that a handful of the loose grapes was to be added to each tray of vined grapes before packaging.

The appeal tribunal found that removing the grapes constituted a violation of employer policy and was an act of such gross neglect as to constitute misconduct. The commission reversed and found that the employer's policy regarding the disposition of the grapes was ambiguous, and that the employe did not intend to steal from the employer.

Held: Affirmed. The court agrees that the employer's policy was ambiguous and that it had not communicated any definite policy on the matter to the employe. The commission's factual inference that the employe acted without intent to steal was reasonable and entitled to deference by the court.

(Affirmed in unpublished per curiam decision in case No. 93-2601. 185 Wis. 2d 708, 710, 520 N.W.2d 110 (Ct. App. 1994).

Paul Schwartz v. Commission Review Board and Frank's Whitewater Lake Marina, No. 91-CV-724 (Wis. Cir. Ct. Walworth County April 29, 1992)

The employe worked about one year as a laborer in the employer's marina. He left work early on a number of occasions. He was told by the employer that he was not to leave early and the employe understood he was to obtain permission from either the employer or the employer's wife to leave work early.

On November 7, 1990, the employe was told of the various jobs to be done in the employer's absence. The employe did not ask the employer about leaving work early nor did he discuss the subject. That afternoon about one-half hour before normal quitting time he told the employer's wife that two boats were done and he would be leaving. She told him it was okay as long as he had cleared it with the employer.

The employe left early to help a friend put a roof on the home of a friend of a friend. He did the roofing work as a favor and was not paid for the work.

The employer returned to his establishment only to find the employe had again left work early to assist another individual at the roofing job. The employer notified the employe he was discharged.

The ALJ's decision holding no misconduct was reversed by the commission holding the employe was discharged for insubordination.

The employe requested reconsideration and a further hearing because a former co- employe, who was no longer employed by the employer, was willing to testify in the employe's behalf. The request for reconsideration and a further hearing was denied.

Held: Affirmed. (The court in a three sentence decision adopted the commission's brief as the basis for confirming the commission decision. That brief argued that the facts argued by the employe were not part of the hearing record, that he had notice of instructions on hearsay and subpoena of witnesses, that it was improper for him to attempt to supplement the record, that the facts supported that he blatantly disregarded the instructions of the employer's wife, that such disregard constituted gross insubordination and reflected a substantial disregard of the employer's interests and the standards of behavior which the employer had the right to expect of its employe.)

Sears, Roebuck and Company v. Ory J. Harleaux, Jr., No. 93-CV-4567 (Wis. Cir. Ct. Milwaukee County December 20, 1993)

The commission affirmed the ALJ's decision holding that defendant (employe) was discharged by plaintiff employer but that such discharge was not for misconduct connected with the employe's employment.

The employer commenced an action for judicial review just before the 30-day appeal period expired. The commission was not named as a party defendant. The employer was notified that it was too late for it to amend the pleadings to include the commission as a party defendant and as the commission was not named as a defendant it would not file a responsive pleading or move to dismiss the action. Copies of the letter were sent to the court and employe.

The court record shows that the court issued an Order Dismissing The Action (presumably for failure to prosecute) on December 20, 1993, and that no appeal was filed with the court of appeals within 90 days of the Order.

Donald M. Shaha v. The State of Wisconsin Department of Labor and Industry, No. 91-CV-45 (Wis. Cir. Ct. Brown County December 19, 1991) 

Claimant worked for a number of years until May of 1988 as a mechanic for a cheese processing business. He also, for a number of years, operated a business repairing farm equipment, renting three combines, operating another combine, selling farm equipment tires, and raising a cash crop.

A commission decision, which was not appealed, held that in 1988 claimant was engaged in his self-employment during twelve months in that year. An initial determination was issued holding that in 1989 he engaged in his self-employment in weeks 1 through 40, that he earned weekly income in those weeks of $269.05 which was to be treated as wages for the purpose of determining benefits payable, and that as a result he was overpaid over $2,300 in benefits.

The ALJ held claimant was self-employed on a 12-month basis instead of from May to October as contended. The ALJ also held that his net profit from his self- employment included over $7,000 for the rental of three combines which claimant contended should be excluded under Ch. ILHR 131.02 (2) as rental income. The amount of overpayment was affirmed.

In his petition for commission review claimant indicated he did not yet have his amended income tax returns from his accountant. At the commission's request he did submit the amended returns which included both a Schedule C and a Schedule E. The Schedule E showed income from a rental arrangement. The commission affirmed the ALJ's decision holding that claimant's renting himself as the operator of one of his combines was personal services for pay, not rental income. The amount of overpayment was also affirmed.

Held: Affirmed in part and set aside in part. There is substantial credible evidence to support the finding that claimant was engaged in self-employment activity and had self-employment income during the 1989 period in question. The court also accepts the commission's proposal to reconsider the income received by claimant from self-employment and to recompute the amount of overpayment.

NOTE: The commission issued a subsequent decision showing that claimant's self-employment income did not include the rental value on the combines which in turn reduced the amount of the overpayment by more than one- half.

Terrance J. Shanahan v. LIRC and Beer Capitol Distributing, Inc. (erroneously referred to as Brew City Distributors), No. 94-CV-000023 (Wis. Cir. Ct. Milwaukee County December 30, 1994)

The plaintiff-employe worked about four and one-half years as a salesman for the employer, a concern engaged in the operation of a beer and beverage distribution business, until his employment ended on January 29, 1993.

The employe tested positive for cocaine in a pre-employment drug screen test. He was told that continued use of cocaine would result in his discharge. He and co- Worker's were randomly tested for drugs about once a year. Marijuana was initially not on the prohibited list of drugs but during the employe's employment, all employes were notified that discipline would be imposed for its use while off from work.

The employe tested positive for drug use on two out of five tests. After he tested positive the first time for use of marijuana he was told his job would be in jeopardy if he again tested positive. Although he did not work impaired and was not disciplined for using marijuana, he was again tested on January 25, 1993. That test was positive for THC metabolite. He was called into the office, shown the test results, and advised he could resign with a good recommendation or be discharged without a recommendation.

There was no expert testimony to establish that the positive result was not a false positive. The employe, however, conceded that the positive tests were correct. He denied that he had used marijuana within 30 days of the final drug test and alleged that he tested positive on the final drug test because of his exposure and inhalation of secondhand marijuana smoke from associates who had used marijuana at a concert three to four days before he was tested or because his roommate smoked pot in their room regularly. No expert testimony was offered regarding the effects of secondhand marijuana smoke.

Because the employe had no option of whether he could continue working for the employer, benefits were denied at all administrative levels as his violation interfered with the employer's reasonable interest in a drug-free workplace.

Held: Affirmed. The employe contends that the drug screening test used by the employer did not comply with the federal drug screening regulations set forth in 49 C.F.R. 40. Such regulation is only applicable to transportation employers who are required to conduct such tests. The employer here is not required to comply with those requirements and the employe did not submit other convincing evidence that the drug screening test used by the employer was deficient and thus unreliable.

Under Gregory v. Anderson, 14 Wis. 2d 130, 137, 109 N.W.2d 675 (1961), a violation of an employer's rule concerning an employe's conduct during off-duty hours constitutes misconduct when the rule bears a reasonable relationship to the employer's interests. The evidence in this case establishes that the no-drug policy was established to promote the well being of the employer and for the safety of the public. The safety of the public is sincere as all of the employer's salesmen, including plaintiff, have to operate a motor vehicle.

The evidence of the effects of marijuana on work performance is sparse in the record. This court is not convinced "that the employer should be required to prove facts that are well recognized by science and our society." THC is listed as a controlled substance in sec. 161.14 (4)(t), Stats., and it is a well known fact that use of marijuana negatively effects human coordination and performance. The court is satisfied that marijuana misuse is a valid interest of the employer and its policy was reasonably designed to protect it.

Ronald L. Shaw v. LIRC, No. 92-CV-008437 (Wis. Cir. Ct. Milwaukee County September 23, 1992)

Plaintiff-employe's request for hearing was dismissed as untimely for reasons not beyond his control. LIRC affirmed. Plaintiff's action for judicial review failed to join his employer as a party defendant and the commission moved to dismiss.

Held: Motion granted. Section 102.23 (1)(a), Stats., requires that the adverse party--the employer in this case--shall be made a party defendant. If the adverse party is not named as a party defendant within the 30-day appeal period it is a proper basis for dismissal.

Elizabeth Simonson v. LIRC, No. 92-CV-011296 (Wis. Cir. Ct. Milwaukee County January 8, 1993) 

Plaintiff-employe sought judicial review of the commission's decision affirming the appeal tribunal decision. She filed and served a petition for commission review on the commission. No summons was filed or served and Miller Brewing Company, her employer, was not named as a party defendant.

Held: The commission's Motion to Dismiss is granted. Plaintiff was granted time to respond to the motion by the court but she failed to do so. That would be sufficient to dismiss the action. In addition, the court lacks jurisdiction to consider the merits because plaintiff failed to serve a summons and complaint on the commission and because she failed to name and serve the employer, Miller Brewing Company.

Donald Slavik v. LIRC, State of Wisconsin, Westinghouse Electric Corp., and DILHR, No. 93-CV-112 (Wis. Cir. Ct. Outagamie County October 26, 1993) 

The employe applied for benefits on October 31, 1990, and since he was to begin receiving pension benefits on November 1, 1990, he checked "yes" to the claim form question inquiring whether he was receiving pension benefits. For unknown reasons, a department employe subsequently changed the "yes" to "no." This resulted in the employe receiving the full amount of unemployment benefits not reduced by the pension payments as required by sec. 108.05 (7), Stats. When the employe applied for Emergency Unemployment Compensation in December, 1991, the overpayment was discovered and an initial determination was issued requiring repayment of the erroneously-paid benefits. The appeal tribunal and the commission upheld the initial determination. Both bodies additionally found that they did not have authority to waive the overpayment, but that the department did have such authority.

The employe requested waiver from the department but the department denied that request, stating that the only authority for waiver is found in section 108.16 (3), Stats. That statute provides for write off of overpayment only after reasonable efforts have shown the overpayment to be uncollectible.

Held: The employe asserted that the overpayment was improperly and untimely assessed; and in the alternative, that waiver of the overpayment should have been ordered by the appeal tribunal or the commission. The overpayment was properly assessed and neither the appeal tribunal nor the commission had authority to waive it. This latter holding is plainly stated in Topp v. LIRC, 133 Wis. 2d 422, 428, 395 N.W.2d 815 (Ct. App. 1986).

(Affirmed in unpublished decision No. 93-3342, 187 Wis. 2d 292, 293, 522 N.W.2d 207 (1994 Ct. App)).

Gene E. Smart v. LIRC and Crown Services, Inc., c/o Simon Compensation Services Co., No. 92-CV-007846 (Wis. Cir. Ct. Milwaukee County August 31, 1992) (Bench decision)

Last date to commence an action for judicial review was Monday, June 1, 1992. Plaintiff mailed a copy of his summons and complaint to the Dane County Sheriff on Friday, May 29, 1992 requesting that it be served on the commission. The summons and complaint were received by the Dane County Sheriff on Monday, June 1, 1992, but not served on the commission until Tuesday, June 2, 1992, one day late. Commission moved to dismiss. Plaintiff argued that equitable estoppel should be applied to preclude the commission from moving to dismiss, since Dane County Sheriff and commission are both agents of the State of Wisconsin, and plaintiff reasonably relied on the Dane County Sheriff to serve the summons and complaint in a timely manner.

Held: Motion to dismiss granted in bench ruling. The court relies exclusively on the language of section 102.23 (1)(b), Stats., that "service upon a commissioner or agent authorized by the commission to accept service constitutes complete service on all parties," noting that the commission had not acted to make the Dane County Sheriff an agent authorized to accept service on its behalf.

Kenneth W. Smith v. LIRC, No. 93-CV-509 (Wis. Cir. Ct. Rock County August 30, 1994)

Employe received TAA (training assistance) for a course of training approved under the Trade Act. He later was denied further TAA for another course of study, on grounds that it could not be approved under the Trade Act since he had already completed a course of Trade Act-approved training. He took the training anyway. He later was held eligible by the commission to receive weekly "basic" TRA benefits under sec. 231 of the Trade Act, notwithstanding the fact that he was not enrolled in Trade Act-approved training, because he had completed such training in satisfaction of the requirements of the Act. Still later he sought "additional" TRA under sec. 233 of the Act. The department and then the commission denied his request for "additional" TRA because unlike sec. 231, which allows payment of "basic" TRA if approved training has been waived or completed, sec. 232 limits "additional" TRA to those who are actually enrolled in approved training.

Held: Affirmed. "Additional" TRA benefits are available only to claimants who are enrolled in approved training.

Donald J. Sonnenberg v. LIRC and Federated Realty Group Inc., No. 91- CV-0650 (Wis. Cir. Ct. Dane County December 3, 1991) 

The employe was hired as director of marketing and expansion by the employer, a residential real estate sales business, under a written contract with a term of one year, which was subsequently extended by an additional six months. Following some discussions between the employe and the employer about whether the employment relationship was developing acceptably to both parties, there was a meeting at which, the ALJ and the commission found, the employe solicited and voluntarily agreed to termination of his employment. Benefits were therefore denied.

Seeking judicial review, the employe argued that the facts were significantly different from those found by the ALJ and the commission, and that he had in fact been fired outright at the meeting in question. He also raised a number of other arguments, including the argument that the commission erred in stating that it relied on the ALJ's demeanor impressions in affirming the decision, since the employe had in fact testified at the hearing by telephone and thus, he reasoned, the ALJ could not have resolved the credibility dispute in the case by way of impressions as to the employe's demeanor.

Held: Affirmed. Relying on established law concerning the scope of review for findings of fact, there is substantial evidence in the record (the testimony of the employer's witnesses) that the facts were as found by the commission and that the employe in fact quit. Because the employe made no arguments to the court that, if it was found that he quit, his termination was for a reason that would allow payment of benefits under sec. 108.04 (7), Stats., the court affirmed without discussion the conclusion of the commission that the voluntary termination did not fall within any of the exceptions provided for in that section. With respect to the argument concerning the role of demeanor impressions and the resolution of the credibility issues, the court notes first that the employe waived any objections to the procedure whereby he testified by telephone since he elected this method of appearance and did not raise an objection to it at hearing. The court further notes that Wisconsin law has recognized that "demeanor" is largely a function of tone of voice and manner of speaking, and that nothing is intrinsically wrong with the use of telephone testimony in a civil matter.

Millard C. Sorenson v. LIRC and American Materials Corporation, No. 91-CV-29 (Wis. Cir. Ct. Dunn County July 29, 1991)

The employe worked about 25 years as an operating engineer for the employer, a construction and sand and gravel business. After he was laid off for the season because of the weather he initiated a claim for unemployment benefits. He also subsequently filed a claim and received a pension.

A department deputy issued an initial determination holding that pursuant to sec. 108.05 (7), Stats., the employe's U.C. benefits were to be reduced by that part of his retirement payment financed by his base period employer, that his entire retirement payment was financed by the employer, and that he was overpaid benefits.

The employer, pursuant to the labor agreement with the employe's union, paid an hourly amount to the union welfare fund based on the number of hours the employe worked in the pay period. The employer reported to the employe the amount of the payment to the union in the employe's behalf quarterly or semi- annually.

The employe contended that there should be no reduction in his U.C. benefits because his retirement payments were not financed by the employer. Although social security deductions were listed on the employe's paycheck stub, the retirement payments were paid to his union by the employer in accord with the labor agreement. The appeal tribunal affirmed the initial determination, which was in turn affirmed by the commission.

Held: Affirmed. There is credible and substantial evidence to support the commission's findings that the employer contributed all of the amounts to the union pension fund.

Spar Marketing Services, Inc. v. LIRC and Judy Kruse, No. 92-CV-4081 (Wis. Cir. Ct. Dane County May 24, 1993) 

Plaintiff-employer is a Minnesota based corporation engaged on a national basis in providing in-store merchandising for a variety of clients. The employer recruits contractors, such as co-defendant claimant, via newspaper advertisement, word of mouth or by referral from a retailer, to stock shelves, promote products, take inventory and do other related duties for the employer's clients.

Contractors sign an independent contractor agreement with the employer and an Internal Revenue Service Form requesting a taxpayer identification number and certification. Contractors may be trained during a telephone call by the employer's territory manager or by another contractor.

Contractors are notified of a job assignment by the employer and the contractor's work is not supervised by the employer. Contractors are paid an hourly rate bi- weekly plus a flat rate of $3.00 or $7.00 for transportation expenses. The employer and/or client established how long an assignment should take and when it is to be completed. If a contractor spends more than the allocated time on an assignment he or she may or may not be paid more than for the time allocated. Contractors may refuse assignments, may work for other employing units, and subcontract assignments to others.

Claimant, a Wisconsin resident, reported wages for week 10, the calendar week ending March 7, 1992. The employer reported no wages and no payments. Following an investigation, an initial determination was issued holding that claimant performed services for the employer as an employe, that her services constituted employment for U.C. purposes, and that she was required to report wages from such employment.

Claimant did not appear at the hearing requested by the employer. The ALJ's decision, affirmed by LIRC, held that the employer did not exercise direction and control over claimant's work but that it was not established by the employer that claimant was engaged in an independently established business.

Held: Affirmed. Under the two-step provisions of sec. 108.02 (12), Stats., the department has the burden to establish that an individual performed services for an employing unit. If this burden is satisified, the burden shifts to the employing unit to establish that it is exempt by demonstrating both that the individual has been and will continue to be free from the employing unit's direction and control and that such services have been performed in an independently established business in which the individual is customarily engaged.

The sole issue, which by case law is a factual question, is whether claimant performed services for the employer in an independently established business in which she is customarily engaged. Keeler v. LIRC, 154 Wis. 2d 626, 631, (1990 Ct. of App.) has established five interrelated factors for a court to examine as guidelines to determine if an individual is customarily engaged in an independently established trade, business or profession. The factors are integration, advertising or holding out, entrepreneurial risk, economic dependence, and proprietary interest.

Considering the various factors, under the economic dependence factors, while claimant had the right to work for the employer's competitors or to subcontract her assignments to others, the question is if she in fact did so. The employer failed in its burden to establish that she did so. Under the proprietary interest factor, it is not surprising that the work claimant performed required no tools or equipment. Regardless, one would expect an individual engaged in an independent business to have intangible assets, such as good will or leads for future business. The employer presented no evidence of intangible assets which could be transferred, sold or given away.

There is substantial evidence to support the commission's findings that claimant did not perform her services in an independently established business.

(Affirmed in unpublished per curiam Ct. of Apps. decision in case No. 93-1852 Wis. 2d (1994 Ct. Apps.))

Joseph J. Strobel v. City of Brookfield, No. 93-CV-002-600 (Wis. Cir. Ct. Milwaukee County May 17, 1993) 

The employe-plaintiff attempted to commence an action for judicial review by filing a petition under Ch. 227. He failed to serve a summons but served both the city and LIRC with an unauthenticated copy of a petition for review. LIRC was not named as a party in the caption but was named in the petition.

LIRC and the city moved to dismiss on the ground that failure to follow statutory procedures deprived the county of personal jurisdiction and UC Digest jurisdiction over the action. The court initially denied the motion as to subject matter jurisdiction and ordered additional briefs on the personal jurisdiction issue.

Held: Motion to dismiss granted and the court's decision at the motion hearing that it had UC Digest jurisdiction is set aside. Case law provides that strict compliance with sec. 102.23 Stats. is required and includes proper service of both a summons and complaint on necessary parties to the action. Including a party in the body of the complaint without naming the party in the caption of the action is a fundamental, as opposed to a hypertechnical, defect. Failure to serve the city and LIRC with an authenticated summons and complaint is also a fundamental defect depriving the court of personal jurisdiction over them. The city and LIRC did not waive the defects because they did not answer the plaintiff's attempt to commence an action for judicial review. Instead they moved for dismissal on alternative grounds.

Robert Sullivan v. LIRC and Contemporary Products, Inc., No. 91-CV- 304 (Wis. Cir. Ct. Washington County March 9, 1992) 

A laid off employe stated in his work registration statement that he was available only for full-time work on third shift which paid at least $11 per hour; he subsequently indicated that he would not work for less than $10. Based on the opinion of a labor market analyst that these limitations left the employe available for only six percent of the suitable work in his labor market area, ALJ and LIRC concluded that the employe was not available for work in his labor market and was therefore ineligible for benefits. On judicial review, the employe's arguments were addressed solely to the question of whether he had good cause under sec. 108.04 (9), Stats., to refuse an offer which had been made by his employer to recall him to a second shift job that paid $9.26 per hour.

Held: Affirmed. Credible and substantial evidence supports the findings that the employe was not willing to work for less than $10 per hour other than on third shift, and that this left him available for only six percent of the suitable work in his labor market area, and these facts supported the conclusion that the employe was not available for work in his labor market area when he began his claim. His assertion that a need to care for his children while his wife worked justified his placement of restrictions on his hours, was rejected where his sister-in-law had in the past and would presently care for his children, and the employe did not make efforts to find alternative childcare arrangements, such that the restrictions cannot be said to have been for good cause. Whether employe had good cause to refuse a particular recall offer is not the issue; that matter was in fact resolved in the employe's favor in a separate initial determination. The issue before the court was simply one of general availability.

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David J. Teske v. LIRC and Village of Lake Delton (Sauk County), No. 90- CV-330 (Wis. Cir. Ct. Sauk County July 3, 1991) 

The employe worked about six months as Village Administrator-Engineer. Several days prior to his last day of work the village board president suggested that because of a perceived problem the employe should resign and if he did so some sort of severance pay package could be arranged.

The employe was aware of the village ordinances and knew that a 5/7th vote of the village board was necessary to discharge him after a hearing. He asked and was granted several days to consider the board president's suggestion. During that time he contacted six board members and ascertained four would vote for his discharge. He prepared a resignation statement which he submitted to the board and he negotiated with the village attorney concerning the settlement, increasing the amount from two months' to four months' salary. The village board met and accepted his resignation by a 5 to 2 vote.

The commission, affirming the ALJ, held that employe quit, that such quitting was not with good cause attributable to the employer, and that he was not discharged.

Held: Affirmed. The standards of judicial review are set forth in the Statutes. The findings of fact are supported by credible and substantial evidence and such facts support the conclusion. The conclusion of whether the termination was voluntary and whether it was with good cause attributable to the employer are legal results drawn from the facts and call for a value judgment. The court has to decide the extent to which it will substitute its own judgment for that of the commission.

The employe was not discharged and the village took no action inconsistent with his continued employment. He believed the board had sufficient votes to discharge him so he tendered his resignation but there could have been a different result. He chose not to continue his employment, giving up his right to a hearing and a vote on the discharge issue believing he could work out a better deal and prevent a cloud on his record. It was a conscious choice of options available and he received substantial consideration for his signed resignation. He has to repay benefits he erroneously received.

Gary L. Tischauser v. LIRC, and Nicolet Paper Company Division of International Paper Co., No. 91-CV-168 (Wis. Cir. Ct. Shawano County Division Menominee Shawano Counties July 13, 1992)

Plaintiff employe worked for the employer special paper manufacturer for about three years. On September 20, 1990, the employe unsuccessfully attempted to physically move a vending machine to dislodge some candy stuck in the machine. He then used a forklift in an effort to level the vending machine and cracked the glass front. He returned to work without notifying his supervisor of the damage. When later questioned by the supervisor he denied knowledge of the incident. He was told there were witnesses. He then explained what had occurred. He was placed on disciplinary suspension and discharged on September 27, 1990.

The employe's Army reserve unit was activated for Operation Desert Shield/Storm and his testimony at the hearing requested by the employer was taken by telephone at the employe's request. The ALJ held the employe was discharged for misconduct connected with his employment and on January 28, 1991, the commission affirmed. The commission was notified by letter dated February 18, 1991, from an attorney in behalf of the employe that the employe claimed all rights and benefits due him under the Soliders and Sailors Civil Relief Act of 1940, as amended (50 U.C.S. App. 525), thereby tolling the 30-day appeal period under sec. 102.23 (1), Stats. The attorney also advised that the employe may bring an action for judicial review within 30 days following the termination of his period of active duty.

The employe renewed his claim for U.C. benefits by filing claims he dated May 16 and May 18, 1991. He was released from military service on May 19, 1991, based on records filed with DILHR. Action for judicial review was filed on the employe's behalf on August 9, 1991, and served on the commission on August 26, 1991.

The commission, by affirmative defense, alleged that the court lacked competency to consider the action for judicial review on the merits because under sec. 893.21, Wis. Stats., and under 50 USC sec. 521 or under the amendment dated March 18, 1991, the employe's action was not timely commenced.

Held: Appeal was not timely and therefore denied. The court has reviewed the record and the briefs and adopts the reasoning of the brief filed in behalf of the commission. The findings and conclusion of the commission are also affirmed.

Tri-Marq Communications, Inc. v. DILHR & LIRC, No. 92-CV-017329 (Wis. Cir. Ct. Milwaukee County January 18, 1994)

The plaintiff corporation engaged in television, video tape and film production, including training and image tapes and films for businesses and television commercials. When a client engaged plaintiff to do a project, plaintiff chose a person to act as producer-director for the project. Occasionally, this would be one of the corporate principals.

After an initial meeting with a client and the plaintiff's principals, the producer- director took care of the details of the project. The producer-director then chose other production technicians including camera and lighting people and occasionally sound technicians. They were paid by plaintiff.

Plaintiff retained control over the budget of the project and occasionally inquired of the producer-director how the project was proceeding.

The producer-director gave guidelines and specifications as to what kind of shots and effects were to be achieved. The producer-director also had the authority to coordinate the efforts of the Worker's.

Plaintiff's principals edited the job.

None of the producers-directors involved invested money in this activity. The investment of the other technicians was relatively small. The producers-directors did not perform extensive services for other similar businesses but the other Worker's did.

Neither the producers-directors nor the other Worker's had anything to sell other than equipment, if they ceased performing similar services. Plaintiff was interested in their particular skills when it engaged them.

The department determined that a number of individuals were plaintiff's employes, including a lighting director, whom in a later investigation was determined to have his own employes, and a script writer, and plaintiff was subject to the taxing and reporting provisions of the U.C. law as of January 1, 1991.

The ALJ affirmed the initial determination of subjectivity but held that all Worker's other than the principals of the corporation were not its employes. This conclusion was based on findings that the services were performed free from the employing unit's direction or control and because the individuals performed extensive services for other organizations.

The department petitioned seeking to reverse that part of the decision which had not affirmed the initial determination. The commission affirmed insofar as it found the corporate principals the plaintiff's employes, and insofar as it incorporated the department's stipulation that one lighting technician who had his own employes was not plaintiff's employe. It reversed the appeal tribunal decision as to all other Worker's, except for one script writer which it found to be performing her services free from plaintiff's direction or control as part of her independently established business. The script writer had her own equipment and performed extensive services for others.

The commission found the producers-directors, camera operators, sound persons, and lighting persons were subject to plaintiff's direction or control through the activities of the director.

Held: Affirmed. Plaintiff contends that the review commission is required to defer to the appeal tribunal's findings and conclusions upon commission review. It further contends that there is not sufficient evidence to support the commission's findings and conclusions.

The court owes deference by statute and case law to the findings and conclusions of LIRC and the commission owes no deference to the appeal tribunal decision. The court is required to affirm the findings of the commission if there is any substantial credible evidence to support them. Such evidence exists in this case. Specifically, there is sufficient evidence to show that the Worker's were subject to plaintiff's direction or control either directly or through the directors. Finally, there is credible evidence that the Worker's did not perform their services in independently established trades, businesses or professions in which they were customarily engaged.

Steven Trotter v. LIRC and Master Lock Co., No. 90-CV-013670 (Wis. Cir. Ct. Milwaukee County March 11, 1991) 

On the employe's last day of work he was asked to come in to the employer's guard house at the end of his shift because of a tip that he was removing the employer's property from the premises. He had received permission to remove empty boxes but the way he carried the boxes was such that it appeared the boxes were not empty. He refused to show what was in the boxes or permit anyone to lift the boxes. He offered to let the employer's representative check his locker and returned to the plant. He was followed and told that if he did not stop he would be guilty of insubordination. The employer's representative temporarily lost sight of him but then observed him placing one of the boxes he had been carrying behind a cart. He subsequently denied it was the box he had been carrying. The box contained about 30 pounds of locks with a value of about $300.

The employe contended that he had returned to the plant to use the rest room facilities due to a medical condition. There was, however, a rest room in the guard house which he was aware of. Because of the lack of credibility, his various contentions were resolved in the employer's favor, including his contention that he did not hear the instruction to stop while he was going up the stairwell.

Benefits were denied at all administrative levels on the ground that he was discharged for misconduct connected with his employment.

Held: Affirmed. The weight and credibility of the evidence are to be decided by the commission. Generally, the reviewing court should not upset an administrative agency's interpretation if there exists a rational basis for that interpretation. The findings of fact adopted by the commission are supported by credible and substantial evidence. Those facts support the conclusion that the employe was discharged for misconduct connected with his employment.

Peter Tubic v. City of Milwaukee and LIRC, No. 93-CV-2680 (Wis. Cir. Ct. Dane County September 23, 1994) 

The employe reported to his new job assignment on April 20, 1992, but immediately left after complaining of disabling stress which he attributed to the fact that the new assignment was at a housing development with a high crime rate. He thereafter telephoned the employer each day to report that he was absent due to illness, but failed to provide the employer with requested medical excuses for these absences. The employer notified him on two occasions of two separate meetings which were scheduled to discuss his continued absence, but the employe failed to attend either meeting. On June 5, 1992, the employe did present the employer with an evaluation he had received from a psychologist, but this evaluation found the employe to be normal and did not provide an excuse for his on-going absences. The employer discharged the employe on July 2, 1992, after he had failed to attend the second meeting scheduled to discuss his absence.

The appeal tribunal found misconduct. At the commission level, the employe asserted that the ALJ had been biased and had not allowed him to enter all relevant evidence. The commission affirmed the appeal tribunal and found that there was no evidence of bias or lack of due process. The employe appealed to circuit court and made the same arguments and also asked the court to listen to the tape recording instead of using the transcript of testimony.

Held: The circuit court affirmed the findings of misconduct, found no bias or lack of due process and refused to listen to the recording for a number of reasons.

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University of After School Care, Inc. v. LIRC and DILHR, No. 93-CV-456 (Wis. Cir. Ct. Dodge County June 21, 1994)

Plaintiff was a nonstock corporation incorporated in Wisconsin in 1988 in the business of providing day care services. In February 1989 plaintiff filed an application with the Internal Revenue Service (IRS) to be recognized as a charitable, religious or educational entity under �501(c)(3) of the Code as a nonprofit organization. Its application was incomplete, so plaintiff was required to supply additional information. It did not then pursue the application process because it could not afford the $300 application fee. Beginning in 1990, plaintiff had at least four employes during some part of a week in 20 different weeks so it became subject to financing and reporting requirements of the Wisconsin unemployment compensation law.

In the summer of 1991, plaintiff again applied to IRS for a ruling that it was an organization described in �501(c)(3) of the Code. After supplying additional information at the IRS's request, plaintiff, on June 4, was issued a ruling by the IRS that it was a �501(c)(3) organization as of October 30, 1991.

On June 16, 1992, plaintiff provided DILHR with a copy of the ruling letter. In response, on June 17, 1992, DILHR issued a determination recognizing plaintiff as a nonprofit organization as of July 16, 1992, ruling it was eligible to apply for reimbursement financing effective June 1, 1993. The initial determination also required plaintiff to pay unemployment compensation taxes for the years 1990 through 1992 on the basis that it was not eligible to meet its financial obligations under U.C. law on a reimbursement basis for those years.

Plaintiff asserted it should be allowed to elect reimbursement financing retroactive to the effective date of its subjectivity to the U.C. law or January 1, 1990. An appeal tribunal decision issued on March 25, 1993, affirmed the initial determination. On August 31, 1993, LIRC issued a decision affirming the appeal tribunal decision. LIRC ruled �108.151(2), Stats., provided that reimbursement financing could only be elected at the beginning of a calendar year. Section ILHR 110.05, Wis. Admin. Code allowed the department to consider plaintiff to be a nonprofit organization retroactively only to the effective date of its ruling by the IRS or October 30, 1991, and only if plaintiff acted diligently. LIRC held it did not apply for an IRS ruling promptly.

DILHR and LIRC argued that plaintiff had never filed a written notice electing reimbursement financing or provided an assurance of reimbursement as required by �108.151(2)(c), Stats. Furthermore, plaintiff did not act diligently in securing its ruling letter from the IRS and the delays in the issuance of that ruling letter were not solely attributable to the IRS.

Held: Affirmed. Sections 108.151(2), Stats., and ILHR 110.05, Wis. Admin. Code require and support the conclusion reached by LIRC. In effect plaintiff is asking the court not to apply the letter of the law but the spirit of the law. The court is not allowed to do so in an administrative review proceeding.

Uplands Counseling Associates v. LIRC, No. 91-CV-4748 (Wis. Cir. Ct. Dane County July 10, 1992)

The employer operated a private for-profit psychiatric clinic. Following an audit, it was determined that a number of psychiatrists, psychotherapists, psychologists, and other health care professionals had performed services for the employer as employes. The employer appealed an initial determination of the department assessing delinquent unemployment taxes based on the compensation paid to the individuals at issue.

The ALJ held that the employer had not met its burden of establishing either that the individuals at issue had performed their services free from the control or direction of the employer or that the individuals at issue had performed their services as part of independently established trades, businesses or professions in which they were customarily engaged. The commission affirmed.

Held: The circuit court review action was dismissed, with prejudice, based on a stipulation of the parties and an order of the court.

Between the date of the commission decision and the date the circuit court review action was commenced a decision was issued by the Wisconsin Court of Appeals (District II) in the case of Goldberg, et al. v. DILHR and LIRC, Case No. 91-2203.

The Goldberg case also involved the status for state unemployment tax purposes of medical and health care professionals performing services for a private for-profit psychiatric clinic.

It was held that since the employer was subject to the provisions of Wis. Admin. Code sec. HSS 61.91 to 61.98 the employer had the right to control or direct the services performed by the medical and other health care professionals at issue. Administrative rules specified the requirements which must be satisfied in order for a private for-profit psychiatric clinic to be state certified. Such certification was a prerequisite to the employer being able to bill and collect from third parties, such as insurance companies and governmental agencies, for services performed for the clinic's patients.

As it was undisputed that the administrative rules in question applied to the employer in this case the plaintiff agreed to a stipulated dismissal of the case.

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Gerald P. Vande Voort v. LIRC and Tweet-Garot Mechanical, Inc., No. 91-CV-00674 (Wis. Cir. Ct. Outagamine County July 25, 1991)

During the 30-day appeal period the plaintiff employe, representing himself, attempted to commence an action for judicial review by mailing documents to the commission which documents had not been filed with the court and which were neither a summons and complaint. He then redrafted the documents and filed them with the court within the 30-day appeal period. The second set of documents may have been mailed to commission within the 30-day appeal period but the postal cancellation mark was incomplete. The second set of documents crossed in the mail with a letter by LIRC's general counsel indicating plaintiff's first documents failed to commence an action for judicial review and the reasons why. The second documents were received by the commission after the 30-day appeal period and the commission moved to dismiss the action.

Held: Dismissed. The Wisconsin Supreme Court and the Court of Appeals have both held in cases that strict compliance with procedural statutes is required in order for a court to have jurisdiction. Both have dismissed appeals that were one day late. Here, the commission was served beyond the 30-day appeal period and the court therefore does not have UC Digest jurisdiction. 9043.

Charles Vogel Manufacturing Co., Inc. v. LIRC and Kristi A. Blanchard, No. 92-CV-316 (Wis. Cir. Ct. Pierce County August 11, 1993) 

The commission's co-defendent worked about three years, last working as an administrative assistant to the employer's vice president.

A co-employe quit her employment. The employer's owner, who seldom visited the establishment, called a number of employes together. He first asked if anyone was a friend of the former co-employe. Everyone raised their hand. He then asked who thought the co-employe had been mistreated by him. The employe was the only one to raise her hand.

After quitting the co-employe filed a sexual harassment suit against the owner. The employe was to be a subpoenaed witness for the trial and her deposition was taken. The employer's vice president referred to the employe as the star witness.

During the several years between the time the co-employe had filed her lawsuit and the employe quit, the employe was told of remarks the vice president had made to her co-employe relating to the employer's need to fill the employe's position. In addition, the vice president suggested the employe line up another job as a contingency because the owner was a vengeful man and could make life difficult for the employe. Further, another of the employer's managers told the employe on a number of occasions that the vice president had reported that he was under instruction to get rid of the employe. Subsequently, the employe was notified that her job duties and her supervisor would be changing. She quit.

The ALJ's decision, affirming the initial determination, held the employe's quitting was not for any exception that would allow benefits. The commission reversed and held the employe quit with good cause attributable to the employer because she had a reasonable and justified fear of a retaliatory discharge.

Held: Affirmed. The facts found by the commission support the commission's conclusion and it is the facts found by the commission, and not the ALJ, which the court reviews. The commission had the right to find that the employe's testimony was more credible and entitled to more weight than that of the vice president and another manager. The employer considers that its witnesses rebutted the testimony of the employe and her witness. The power to choose which witnesses' testimony to believe is given to the commission and not the court.

The employer also considers that certain undisputed facts require reversal of the commission decision. The commission had to consider all the facts. It is clear the employe had a reasonable basis to believe the owner wanted her out even though personally the vice president did not want her to quit and his and the other manager's support would not be sufficient to prevent her eventual discharge.

The employe's testimony as to what she was told by the vice president and the other manager was not hearsay under sec. 908.01 (4)(b)4., Stats. The testimony was offered against the employer as a statement by the employer's agent concerning a matter within the scope of the agent's employment made during the existence of the relationship.

Bouapha Vongphakdy v. LIRC and Gold Bond Dairy, No. 92-CV-153 (Wis. Cir. Ct. Richland County February 22, 1993) (Bench decision)

An initial determination held that the plaintiff-employe failed in week 24 of 1992 to make a systematic and sustained search for work or failed to provide tangible evidence of that work search to the department. At the hearing her statement was accepted that during such week she contacted two potential employers but she was unsure of the dates and she and the department had no record of such contact. Benefits under Emergency Unemployment Compensation (EUC) were denied as provided by sec. 101 (d) (2) of the Emergency Unemployment Compensation Act of 1991 (P.L. 102.64) and sec. 108.14 (3g)(c) Stats.

The commission affirmed, noting in part in its MEMORANDUM DECISION that the employe had not provided the necessary tangible evidence to prove that her search for work was sustained.

Held: Affirmed.

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Alan J. Waller v. LIRC and Pro-Tech, No. 93-CV-4827 (Wis. Cir. Ct. Dane County November 17, 1994)

The claimant filed a UC claim in the week ending May 30, 1992. On July 2, 1992, he indicated to a department investigator that he had begun establishing his own new company just after his employment with the employer ended on May 12, 1992. His involvement with the new company included 40 hours per week of sales and marketing service between the hours of 8 a.m. and 5 p.m. In mid-June of 1992, he rented a building for the new company complete with a business telephone which he routinely answered. He asserted that he was available for full- time work through the week ending August 15, 1992, when he asserted the new business was finally established. The appeal tribunal decision affirmed the initial determination that during the period in question the claimant was not available for work pursuant to section 108.04 (2), Stats., and ILHR 128.01 (2)(a). The commission affirmed.

Held: Affirmed. The commission's decision involves a question of law and a value judgment which is entitled to weight. There was a "subjective component" in determining the claimant's unwillingness to accept work from other employers. It is a reasonable conclusion that the claimant's activities on behalf of the new company rendered him unavailable for work under sec. 108.04 (2)(a), Stats.

James G. Wanish v. LIRC and Wittenberg-Birnamwood School District; Carol A. Sanderfoot v. LIRC and Appleton Area School District, 163 Wis. 2d 901, 472 N.W.2d 596 (Ct. App. 1991) Petition to Review denied, 163 Wis. 2d Lvii

James Wanish and Carol Sanderfoot appeal the LIRC determinations that they were not eligible for unemployment compensation during school holiday recesses because they were employed immediately preceding and following such recess as a substitute teacher and had reasonable assurance that they would perform such services in the period immediately following such vacation period or holiday recess. The employes had been employed full-time by the employer from whom they were drawing unemployment benefits.

The circuit court held that Wanish was ineligible for benefits during the Christmas recess as the comparison used was the work performed immediately preceding the holiday recess and the period immediately after the holiday recess.

The circuit court in the Sanderfoot case compared the work which the employe performed for the paying employer (full-time) with the work to be performed after the holiday recess (full-time) to substitute work and allowed benefits.

Held: Wanish case reversed; Sanderfoot case affirmed. The court will give "great weight" to the agency's interpretation where the interpretation "reflects a practice or position long continued, substantially uniform and without challenge by governmental authorities and courts." However, if the question is of more recent vintage, the court will only give "due weight" to the agency determination. Because this issue is one of first impression, the court will only give "due weight" to the commission's determination.

When a statute is clear on its face, the court may not look beyond the statute to determine the intended meaning. Extrinsic aids to determine the legislative intent will be used to determine the legislative intent only if the statute is ambiguous. A statute is ambiguous if reasonably well-informed individuals could reasonably understand the statute in two or more senses.

The phrase "such services" renders sec. 108.04 (17)(c), Stats., ambiguous. The primary objective in construing a statute is to achieve a reasonable construction that will effectuate the statutory purpose. Its purpose is to "ameliorate the economic hardship and social costs of unemployment." The disqualifying language must be read with that general purpose in mind. The commission's interpretation is inconsistent with the public purpose of the statute and extends the ineligibility provisions of this subparagraph far beyond their intended consequences. The correct comparison is the work which the employe performed for the base period with the work to be performed after the holiday recess.

Janice M. Watson, d/b/a Pet Vacations, Ltd. v. DILHR & LIRC, No. 94- CV-417-D3 (Wis. Cir. Ct. Ozaukee County December 21, 1993)

Plaintiff's corporation operated a pet boarding business. For a fee paid by the pet owner, plaintiff arranged for an individual to care for its customer's pet in the pet sitter's own home, and compensated that individual for the service. Typically the compensation was 50 percent of the customer's payment to the corporation. Plaintiff's corporation also engaged an individual to clean in the plaintiff's home.

The business engaged pet sitters by a verbal agreement under which the individuals were expected to personally care for the pets in their own homes. The corporation established the customer charges in a written contract with its customer. This agreement allowed the business to change the placement of the animal if necessary, and included an agreement by the pet owner to schedule repeat vacations with the corporation, rather than the individual sitter.

The corporation also engaged the services of an individual to perform house cleaning at the home of its owner, and furnished the individual with its equipment and consumable cleaning supplies. The corporation's business was operated out of its owner's home.

A status audit by the department determined the employer to be a covered employer and the pet sitters and the cleaning person to be employes. LIRC's decision upheld employe status, although it remanded to the department to determine whether the cleaning person's services were in excluded employment (domestic wages below domestic coverage thresholds.)

Held: Applying the five factors set forth in Keeler v. LIRC, 154 Wis. 2d 626, 453 N.W.2d 902 (Ct. App. 1990), LIRC determined that the corporation had not established that the pet sitters or the cleaning person were performing their services in their own independently established trades, businesses or professions in which they were customarily engaged. It is clear from the record submitted to the court that a substantial basis exists for the findings LIRC made. It would be difficult to imagine how LIRC could arrive at any other conclusion, as very little evidence exists to establish the sitters employed by the corporation operated similar businesses with other customers.

Joy J. Weller v. LIRC and Block, Seymour & Samson, S.C., No. 92-CV- 994 (Wis. Cir. Ct. Outagamie County April 6, 1993) 

Employe was a bookkeeper for the defendant law firm. Her phone was removed from her office after she engaged in excessive personal calls. Her request to get it back was granted, and she was warned against continuing to use it for personal calling. She did so anyway. She also engaged in other personal business on work time, and refused to comply with other instructions on what work to do and how to do it. She was eventually fired. ATD found no misconduct. Employer's petition for review was never received. Based on materials provided later (copies of the petition for review, cover letter, and secretary's "certification" of mailing), the commission concluded that the petition was "timely mailed" but lost in the mail, a factor beyond the employer's control, and it accepted the appeal. Commission reversed ATD, finding misconduct.

Held: Affirmed. (1) While disagreeing with the apparent view of the commission that the statutory term "postmarked" can be read as equivalent to "mailed," court defers to the commisson's assessment that the untimeliness was due to "a factor beyond the petitioner's control". This finding is a mixed question of fact and law to which this court is required to give deference to the presumed expertise of the commission. (2) On the merits, there is sufficient testimony in the record which, if believed, constitutes substantial credible evidence in support of the commission's findings. Those findings--that employe refused direct instructions on what work to do and how to do it, and continued use of the phone for personal calls even after warning--supported the conclusion that the termination was for misconduct.

West Central Metropolitan Enforcement Group v. LIRC, No. 93-CV-174 (Wis. Cir. Ct. La Crosse County October 11, 1993)

Plaintiff commenced an action for judical review naming the commission as the only defendant. The commission's decision had affirmed the department's ALJ's decision that plaintiff was an employer subject to payment of U.C. contributions under Ch. 108. Because the Department of Industry, Labor and Human Relations was not also named as a party defendant, the commission moved to dismiss.

Held: Motion denied (and LIRC's decision affirmed in July 18, 1994 decision). The issue is whether DILHR is an adverse party required to be named as a defendant in an unemployment compensation appeal challenging LIRC's decision. Section 102.23 (1)(a) Stats., provides in part that an aggrieved party may commence an action for judicial review in which action the adverse party shall also be made a defendant . . ." When DIHLR is reversed by the commission, DILHR has the right to appeal but when DILHR is affirmed the legislature has chosen LIRC the adverse party in judicial review of its decision. Here, it is the decision of LIRC that is being challenged. Neither secs. 102.23 (1)(a) or (g), Stats. explicitly requires a party to name DILHR as a party defendant. The court's decisions in Brandt v. LIRC, 166 Wis. 2d 23, 480 N.W.2d 494 (1992) and Miller Brewing Co. v. LIRC, 173 Wis. 2d 700, 495 N.W.2d 660 (1993) do not involve the failure to implead DILHR in an unemployment compensation appeal. In addition, DILHR does not have a financial stake in this case as did the unnamed adverse party in the cited court decisions. DILHR itself is not beneficially or adversely affected by a determination regarding plaintiff's status. Both cases also suggest that an adverse party is any party whose interests were adverse at the hearing. Obviously, DILHR could not be an adverse party in proceedings against itself. The court is reviewing LIRC's decision. While the result may be of concern to DILHR, this alone does not make DILHR an adverse party.

West Central Metropolitan Enforcement Group v. LIRC, No. 93-CV-174 (Wis. Cir. Ct. La Crosse County July 18, 1994)

A department initial determination found West Central Metropolitan Enforcement Group to be an employer subject to unemployment compensation contributions under Chapter 108. West Central Metropolitan Enforcement Group was a governmental unit formed to coordinate drug enforcement across a five county area. In order to do drug enforcement investigation the plaintiff hired a number of undercover agents who performed services for the plaintiff. One of those agents eventually filed for unemployment compensation benefits. As a result the department issued a subjectivity determination.

The appeal tribunal affirmed the department's initial determination as did the commission.

The commission also wrote a short memorandum opinion holding as to the direction and control test that the plaintiff had: (1) required timely payment by the agents of reimbursable expenses; (2) required agents to have a vehicle and a specific insurance coverage limit; and (3) controlled the hours per week the agents worked. The appeal tribunal had found that direction and control is present from the employer as a result of also requiring lengthy activity log sheets and the employer's right to terminate the employment relationship at any time.

LIRC also found with respect to the independently established prong that: (1) they did not advertise their services or otherwise hold themselves out; (2) they were entirely integrated into the employer's goals; (3) they had nothing that they could sell or give away and (4) there was no economic risk whatsoever in the employment and therefore no entrepreneurial risk. Also, as to the independently established part of the test LIRC held that when the type of employment makes it impossible to meet the criteria of the statutes this is not to be taken as a basis for saying that the statute does not apply.

Plaintiff appealed but failed to name the department as a defendant. The department moved to dismiss on the basis of failure to join a necessary party but that motion was denied. See October 11, 1993 case. The court then entertained briefs on the substantive issues.

Held: There was substantial evidence to support the commission finding that the plaintiff had failed to prove that the services performed by the undercover agents were performed free of plaintiff's direction and control and that they were performed in an independently established business, trade or profession of the undercover agents. The court agrees that the standard of review is that which requires the court to review the record for credible and substantial evidence that supports LIRC's findings rather than weigh opposing evidence.

In searching the record for instances of direction and control and the independently established test the court finds a number of additional indicia. For example, the plaintiff had the right to approve or disapprove the agents' housing location; that it had the right to decide whether they could take additional employment or hire assistants; and the right to determine the reasonableness of the agents' utility costs. It also finds with respect to the independently established part of the test, that the work history only showed that they had been employes of other law enforcement agencies; none of the agents held themselves out; they could not sell their contractual rights to work for the plaintiff which was determinative of the lack of proprietary interest; and they were not economically independent of the employer.

Dale A. White v. Stoughton Trailers, Inc. and LIRC, No. 90-CV-5006 (Wis. Cir. Ct. Dane County November 21, 1991) 

The employe was employed by the employer as an assembler. On January 1, 1990, the employer adopted a new Employe Drug and Alcohol Abuse Policy which continued to prohibit the use or possession of alcohol or illegal drugs on the employer's premises, and to prohibit employes from being under the influence of such substance at work. The new policy further prohibited off the job use of illegal drugs and further provided the employes could be subject to blood and urine tests. An initial failed drug screen test would result in a three-day suspension and a second violation could result in discharge. In addition, upon the occurrence of an initial violation, the employe would be referred to a local alcohol and drug abuse program for assessment. The employe was aware of the new policy.

In January, the employe tested positive for the presence of marijuana metabolites in his urine and was given a three-day suspension and required to report to a local alcohol and drug abuse program for evaluation. He was released for work without recommendation for treatment but with the recommendation for periodic retesting. He was subjected to a random drug screen test about 2 months later and the results were negative.  He was then again subjected to a random drug screen test about 3 months ater that, and tested positive for the presence of marijuana metabolites in his urine.  Pursuant to the employer's policy, he was discharged.  There was no evidence that he was under the influence of or used marijuana at work. 

The initial determination held that he was discharged for misconduct connected with his employment. The appeal tribunal affirmed as did the commission. The employee appealed.

Held: Affirmed. In order for violation of a rule laid down by the employer to constitute misconduct, it must be a reasonable one. Gregory v. Anderson, 14 Wis.2d 130, 137, 109 N.W.2d 675 (1961).  When such rule relates to conduct of the employee during off-duty hours, it must bear a reasonable relationship to the employer's interests in order to be reasonable.  Id.   The court concludes the employer's rule prohibiting off-duty use of illegal drugs is reasonably related to the employer's business interests.  The employer clearly has a business interest in the safe and efficient operation of its business.  The court looks to evidence that prior to the policy 30% of employees involved in work accidents failed drug tests administered after the accidents while after the policy was introduced that figure fell to 16%, and to evidence that attendance rose from 93% to 98.12%.   The employee introduced no evidence of alternative means the employer could use to protect its business interests.  The employe was aware of the work rule, and his violation of the rule was intentional.

So Fong Wiese v. LIRC and East Central Wisconsin Regional Planning Commission, No. 91-CV-1035 (Wis. Cir. Ct. Winnebago County September 1, 1992) (Bench decision)

The plaintiff-employe worked about four years as a planning technician for the employer, a regional planning commission, until she was discharged on January 31, 1991.

During the last months of her employment the employe's evaluation stated she was uncooperative and hostile to assignments. She failed and refused to follow instructions, argued about instructions from her supervisor, and was found "browsing" through a new computer directory which computer only three employes were permitted to use. She was not one of the three. It was considered that she displayed a deliberate and intentional pattern of defiance which included barging into a meeting with customers she had not been invited to attend and asking questions of the participants. The employe was warned a number of times that her actions were unacceptable.

Although the employe filed two discrimination complaints against the employer before she was discharged and another discrimination complaint after she was discharged, those matters had not yet gone to a hearing.

The commission affirmed the ALJ's decision that the employe was discharged for misconduct connected with her employment.

Held: Affirmed.

Witkin, et al. S.C. v. Mc Mahon, 173 Wis. 2d 763, 496 N.W.2d 688, (Ct. App. 1993), Petition for Review denied

William and Barbara Mc Mahon were officers of Golden Fawn Lodge, Inc. They were paid U.C. benefits for various years based on their employment by Golden Fawn Lodge, Inc. Determinations, appeal tribunal decisions and commission decisions were issued with the result that they were held to have been overpaid benefits. They were represented by the plaintiff law firm relative to their status and the U.C. overpayments (See Mc Mahons and Golden Fawn Lodge v. DILHR and LIRC No. 87-CV-417, (Wis. Cir. Ct. Sawyer County, April 26, 1990) with the digest of that case set forth at pages 268, 269, 1986-1990 UC Court Case Digest).

The Mc Mahons refused to pay the plaintiff firm the balance due for services rendered. The firm reduced the balance due to a judgment from which the Mc Mahons appealed, representing themselves. They contended that the circuit court erred by failing to limit attorney fees to the maximum of 10 percent of the amount at issue as provided by sec. 108.09 (8), Stats., in granting judgment without joining an indispensable party, and awarding costs which included attorney fees because they did not receive the notice required by sec. 814.10 (1), Stats.

Held: Affirmed. The application of sec. 108.09 (8) Stats. is a question of law. The statute limits counselor's or other agent's fee to 10 percent of the maximum benefits at issue in an administrative proceeding unless the department has first approved a specified higher fee. The statutory language is clear and unambiguous, and sets the limits of recovery of attorney fees in administrative proceedings under sec. 108.09 Stats. That section governs the filing of claims by one alleging eligibility for U.C. benefits. This litigation involves a claim against the Mc Mahons by DILHR for reimbursement of erroneously paid benefits governed by secs. 108.04 (13)(c) and (d), 108.16 (3) and 108.22 (8), Stats. Section 108.09, Stats. does not apply.

Mc Mahons also alleged that Golden Fawn, against whose corporate account benefits were erroneously paid and which was also billed by the plaintiffs, is an indispensable party which should have been joined in the litigation. Mc Mahons did not raise the issue at the trial level and they may not raise the issue for the first time on appeal. They also contend that the trial court permitted the erroneous taxation of attorney fees as part of the bill of costs because the notice of taxation of costs did not indicate the date or time filed for taxation of costs. They concede they received the notice. The statute does not require that information to be a proper notice. Besides, they did not object to the taxation of costs nor did they demonstrate "great hardship nor manifest injustice" as provided by sec. 814.10, Stats.

Paul D. Witmer v. LIRC and United Parcel Service, Inc., No. 92-CV-899 (Wis. Cir. Ct. Rock County September 23, 1993) 

Claimant, a UPS delivery driver, was fired following a complaint from a customer that he had shown excessive personal interest in her, made inappropriate comments to her, and entered her house without permission. DILHR and LIRC found misconduct. Claimant argued that his friendliness towards the customer was reciprocal and that he was fired for "sexual harassment" when his conduct did not in fact constitute sexual harassment.

Held: Affirmed. Claimant intentionally violated a number of employer rules which were part of its "Driver Release" program, the goal of which was to reduce driver-customer contact as much as possible. Whether or not he intended making sexual advances is not material; he violated rules on customer contact which put him in a position that could reasonably be construed by a customer as inappropriate. In this he acted contrary to the interest of the employer.

(Affirmed in unpublished decision case No. 93-2989 ___ Wis. 2d ___ , ___ N.W.2d, ___ (1994 Ct. App) 9450 (Decision set forth in full).

James M. Woiak v. Necedah Pallet Co., Inc., and LIRC, No. 93-CV-928 (Wis. Cir. Ct. Wood County June 6, 1994)

The employe worked for the employer as a nailing machine operator. The employer manufactured wooden pallets. The employe's last period of employment began in October 1990. The employe had been asking for a salary increase which had been postponed by the employer several times. On November 2, 1992 the secretary of the employer's general manager asked the employe to extend his shift until another nailing machine operator arrived. The employe told the secretary that she should ask the general manager why he did not get a "fucking raise" if he was so valuable. The secretary reported the response to the general manager who confronted the employe about this language when talking to the secretary. The employe's response to the general manager began "Fuck you . . . ." The general manager then discharged the employe. The commission reversed a decision of an administrative law judge, found that the employe was discharged for misconduct and concluded that he was not eligible for unemployment benefits.

Held: Affirmed. The record in this case contains evidence to support the commission's findings of fact. The court concurs that the employer can expect its employes not to use this language in this kind of situation. The court believes that the commission reached the correct conclusion of law even if only some deference, rather than great deference, is accorded to the commission.

Michael K. Wood v. LIRC and Davey Tree Expert Company, No. 91-CV- 008587 (Wis. Cir. Ct. Milwaukee County November 18, 1991) (Bench decision)

The plaintiff-employe attended a hearing involving the issue whether he quit his employment. He then traveled to various counties looking for a job. Because of his travels, he was late petitioning the commission for review of the ALJ's decision. The commission dismissed his untimely petition on the grounds that his failure to timely petition was not for a reason beyond his control.

Held: Affirmed.

Sherrol J. Wulf v. American Serb Memorial Hall and LIRC, No. 92-CV- 000362 (Wis. Cir. Ct. Milwaukee County March 12, 1993) 

The employe worked as office manager for this food and recreation business that employs about 100 people. She began work on August 15, 1989. On June 7, 1990 the employe completed a worker's compensation report for an injury she had had the prior day. The report, used to calculate her benefits, exaggerated her income. For the weeks ending June 16, June 23 and June 30, 1990 the employe added 5 hours per week to the hours actually worked by another employe. For the payroll period ending June 17, 1990 the plaintiff authorized a two-week vacation check for herself. The employer discharged the employe on July 16, 1990, after learning about these activities.

The ALJ concluded that the employe's discharge was not for misconduct because she had never received any warnings and she had not abused what she believed to be her discretionary authority. The commission reversed. It agreed that inaccurately completing the worker's compensation report was not misconduct. The information submitted could have been a mistake and would have been routinely corrected by the worker's compensation carrier and thus was harmless to the employer. However, it concluded that the other actions were misconduct because she should have obtained approval before taking those actions.

Held: Reversed. The employe made no attempt to conceal the additional hours paid to the other employe. She received no personal gain from this action and thought she had this type of authority. With regard to taking vacation, the commission had rejected the employer's contention that she was not eligible for vacation during her first year since that was not specified in her employment contract. There is no prohibition to receiving worker's compensation and vacation at the same time. The employer is not harmed by taking the vacation at this time rather than at some future time. The only injury sustained by the employer is the indirect result in failing to advise the employer of this legal form of double dipping. This was a mistake and discourtesy but not misconduct.

Cheryl J. Wunderlin v. LIRC and Southwest Health Center, Inc., No. 93- CV-0266 (Wis. Cir. Ct. Grant County August 26, 1993)

Petitioner employe's action for judicial review failed to comply with statutory requirements. She failed to serve the commission with an authenticated copy of a summons and her petition failed to set forth a cause of action. The commission moved to dismiss.

Held: Motion granted.


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Donald F. Zitzner v. LIRC and Accurate Construction, Inc., Nos. 91-CV- 4968 and 91-CV-4969 (Wis. Cir. Ct. Dane County November 13, 1992) 

Accurate Construction, Inc. is in business pouring concrete foundations for houses. The business had been owned by the plaintiff's father and passed to his mother when the father died in 1985. At that time the plaintiff became co-foreman. He applied for and received unemployment benefits in 1987, 1988, and 1990 without any limitation. When he applied for benefits he stated that his mother owned the business and that his only interest was as a foreman. In 1991 the department determined that the plaintiff worked for a corporation in which he controlled, directly or indirectly 25 percent of the ownership interest, however designated or evidenced. It limited his benefit eligibility for each year to four weeks and found an overpayment of $9,298. An ALJ and the commission affirmed those decisions.

Held: Affirmed. The plaintiff's mother owns all of the corporate stock. However, ownership or control is what is measured. Here the plaintiff was a director of the corporation in each year he received benefits. For three of the four years he was vice-president. He worked for the corporation for 20 years. He makes daily decisions including hiring, firing, ordering, some bidding and supervising. Even when he was laid off he looked out for the family interests. Many of the mother's duties, on the other hand, are of a clerical nature. The commission could reasonably conclude that the plaintiff controlled at least 25 percent of the business in reality.

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