Darling v. Industrial Comm

Full title: DARLING and others, Respondents, vs. INDUSTRIAL COMMISSION and another…

Court: Supreme Court of Wisconsin

Date published: Jun 3, 1958

4 Wis. 2d 345 (Wis. 1958)

90 N.W.2d 597

Opinion

May 6, 1958 —

June 3, 1958.

APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed as to certain plaintiffs; reversed as to others.

For the appellant Industrial Commission there was a brief and oral argument by Arnold J. Spencer of Madison.

For the appellant Electric Auto-Lite Company there was a brief and oral argument by H. W. Goranson of Toledo, Ohio.

For the respondents there was a brief by Max Raskin, attorney, and Philip L. Padden of counsel, both of Milwaukee, and oral argument by Mr. Raskin.

On February 24, 1955, 13 employees of Electric Auto-Lite Company brought separate actions against their employer and the Industrial Commission seeking reversal of orders of the commission denying unemployment compensation benefits.

The applications of plaintiffs had been heard before an appeal tribunal of the commission November 9, 1954. Each of the plaintiffs had sought benefits for the week beginning July 11, 1954 (designated week 29), and nine of them had also sought benefits for the week beginning July 18, 1954 (designated week 30). The appeal tribunal affirmed initial determinations previously made by a commission deputy that each employee was ineligible for benefits for the respective weeks. Upon petition for review the commission affirmed. On November 4, 1957, judgment was entered in the circuit court setting aside the order of the commission and remanding the record for further proceedings. Auto-Lite and the commission appealed.

Auto-Lite has its home office at Toledo, Ohio, and operates a number of plants. One of them is at La Crosse, Wisconsin, and is known as the Instrument and Gauge Division. The plant manager is John R. Padesky. Auto-Lite had a "National Agreement" with an international union (U. A. W. C. I. O.) and the La Crosse division had an agreement with Local 396 of the same union.

In the latter part of 1953 and the first half of 1954 Auto-Lite found it necessary from time to time to lay off employees at the La Crosse plant until ultimately a total of approximately 900 had been laid off. Commencing September 21, 1954, a large number, but not all, were recalled.

One of the layoffs occurred January 7, 1954. At that time the management handed the employees being laid off a mimeographed announcement of the layoff, containing certain instructions. The local union prepared a mimeographed statement at the same time and with the plant manager's approval, this statement was handed to the employees with the management's announcement, although there is no testimony that the text of the union's statement was reviewed or approved by the management. The union's statement contained the following:

" Vacation Pay — To those members who receive their vacation pay during the time they are unemployed they should continue to register for unemployment insurance as this vacation pay will not affect their unemployment benefits."

On June 4, 1954, a representative of the legal department of Auto-Lite at Toledo wrote to the plant manager at La Crosse, in part, as follows:

"Under the Unemployment Compensation Law of the state of Wisconsin it may be possible for you to designate a vacation period for laid-off employees so that payment of unemployment compensation benefits may be suspended during the vacation period. Accordingly, I suggest you designate the week beginning June 13th as the vacation period for laid-off employees who are entitled to one week's vacation and the weeks beginning June 13th and June 20th as the vacation period for laid-off employees who are entitled to two weeks' vacation."

On July 2, 1954, Mr. Jones, personnel director of the La Crosse plant wrote to the state unemployment compensation department, in part, as follows:

"I have been directed to notify you that the Electric Auto-Lite Company hereby declares weeks number 29 and 30 as vacation weeks for employees laid off from employment of this company.

"All vacation checks have been made out and all those not already called for by employees will be mailed to them not later than July 6, 1954."

A copy of the letter was sent to the president of the union and it was stipulated that payments were made to plaintiffs in proper amounts in all instances where the payments had not been made at earlier dates. Plaintiffs and others, however, registered for work in weeks 29 and 30 and filed claims for benefits for those weeks. It is not asserted that they were ineligible for any reason except that their vacation pay was allegedly wages "for" those weeks and, if so, they were not unemployed in those weeks. Article VIII of the national agreement in effect in 1954 between Auto-Lite and the union provided for vacation pay in terms of a percentage of total straight-time earnings for a previous twelve months' period. The percentage increased with the length of service of the employee involved. "Time off" was also provided at one week for employees with six months' to five years' service and two weeks for employees with longer service. Article VIII also included the following provision:

"Vacation pay shall be paid not later than the time the vacation is taken provided the company is notified of such vacation period not later than two weeks previous to the last day worked before vacation. The vacation period shall be set at a convenient time by the company, except that the wishes of the individual employees as to their vacation period shall be taken into consideration as much as possible."

Article VIII of the national agreement provides that the vacation pay shall be based on earnings for the twelve months' period, June 1st to June 1st. The agreement between the La Crosse division and the local union provides that vacation shall be paid as specified in the national agreement except that the period upon which earnings are computed will be the twelve months' period from January 1st to December 31st and that the employees on the pay roll as of December 31st shall be eligible for vacation pay.

Mr. Jones testified that the practice at the La Crosse plant with respect to learning the wishes of the employees relating to vacations was to send a sheet to the different departments on which the employees would designate the dates they wished to select. This practice had been followed in prior years and was followed in 1954 for the employees who were not laid off but no attempt was made to ascertain the wishes of the employees who were laid off. Mimeographed forms entitled, "Vacation Procedure — 1954" were issued by the management in May, 1954. They stated that "The vacation period . . . will start this year the week beginning May 31st and will end on August 29th;" that "The dates for the Hunting Season Vacation Period will not be established until later in the year." The forms set forth "Rules Governing Vacations." Rule 1 stated: "Employees may apply their vacations to time off on leaves of absence for any reasons, layoff during this year or time off for compensable injuries. To apply this time against vacations, employees must have been off for a period of five or more consecutive work days." The instructions to supervisors set forth a formula for computing the average number of employees in each department that might go on vacation during a given week and further instructions were given with respect to the signing for vacations initially by the employees and changes or cancellations or new applications after May 14th.

Auto-Lite had never designated specific weeks for vacations before 1954. Mr. Jones testified that the company policy, basically, was that an employee who was away from work for personal reasons might take his vacation as originally scheduled or might apply it to leaves of absence from work, as long as it was within the same year. Those few people who have taken no time off during a year commonly have taken it off during the last two weeks of the year. Mr. Jones admitted that the real reason for designating weeks 29 and 30 was to disqualify the laid-off employees from receiving benefits for those two weeks.

It was stipulated before the appeal tribunal that the cases of the present plaintiffs are representative of those of several hundred other claimants who had worked for Auto-Lite and that the decisions in the present cases would be controlling with reference to other cases containing a similar set of facts.

The situations of the 13 plaintiffs are not identical. Plaintiff Kathleen Darling was laid off July 9, 1954, and was recalled September 21st. She was entitled to two weeks' vacation and vacation pay of $163.87. The money was paid to her June 20th. She did not want her vacation pay allocated to weeks 29 and 30; prior to layoff she had requested that weeks 33 and 34 be allowed as her vacation weeks but she had canceled that request when she was laid off. She did not register for work and was not available for work in weeks 33 and 35 and did not file claims for benefits for those weeks and claimed that her vacation pay should be allocated to those weeks.

On July 21, 1954, Mrs. Darling, then Miss Kohlwey, signed a questionnaire of the unemployment compensation department in which she stated: "I want the weeks of August 9th and August 16th for my vacation. I am getting married and am taking a trip during those two weeks. Under the terms of our agreement, the company must consider my wishes in this matter."

Plaintiff Richard Briggs was laid off June 23d and recalled October 26th. He was entitled to two weeks' vacation and vacation pay of $237.80. He was paid June 25th. He had signed up for vacation weeks the last of July and the first of August but changed his plans and registered for work in all weeks during his layoff. He changed his plans because he felt he could not lose four weeks' compensation. On July 26th he signed the department's questionnaire in which he stated "Under the terms of the union agreement I am not required to designate any particular week as vacation weeks until the last two weeks of December, 1954."

Plaintiff Janice Brudos had been absent on a pregnancy leave of absence since October, 1953. She was laid off December 4, 1953. The employment office did not permit her to register and file a claim for benefits until she canceled her leave. She did so in May and registered and filed claims thereafter. She had not been recalled at the time of the hearing. She was entitled to two weeks' vacation and vacation pay of $158.99. It was paid to her in June. On July 19th she signed the department's questionnaire, stating, "I didn't register for or claim unemployment benefits for the period 1-1-54 to 5-10-54, and I want to designate 2 weeks of that period as my vacation."

Plaintiff Armin Foellmi was laid off April 23d. The date of his recall does not appear. He was entitled to two weeks' vacation and vacation pay of $227.38. It was paid to him May 23d. He was ill and did not register nor claim benefits from June 13th to July 3d. On July 20th he signed the department's questionnaire, stating: "I did not register claim U. C. benefits from 6-15 to 7-6-54. I missed 3 U. C. checks, and I want that time counted as my vacation period."

Plaintiff Avelena F. Gildermeister was laid off June 23d. The date of her recall does not appear. She had taken a leave of absence from March 29th to April 5th. She was entitled to two weeks' vacation and vacation pay of $216.14. It was paid to her at her request March 29th. She signed up before layoff for a week of vacation during hunting season. On July 20th, she signed the department's questionnaire, stating that she had already taken one week of vacation (3-29-54 to 4-5-54) and "I have one week coming Nov. 11-20-54 as my other week vacation, for deer hunting season, the company O.K.'d it as my other week." The company conceded that week 30 need not be considered a vacation week for her, but maintained that week 29 was. She testified at the hearing that her foreman had told her she could have a leave of absence for a week about November 20th.

Plaintiff James G. Harnisch was laid off March 26th and had not been recalled at the time of the hearing. He was entitled to two weeks' vacation and vacation pay of $227.81. It was paid to him June 25th. He was employed by a different employer May 5th to June 11th and ineligible for benefits during that time. He desired to have his vacation pay allocated to two weeks while employed elsewhere. He signed a questionnaire July 20th and stated: "I did not register and claim benefits for the 2 weeks listed [May 16 to May 29]. I want this time counted as my vacation."

Plaintiff Donna M. Lemke was laid off January 7, 1954. She had not been recalled at the time of hearing. She was entitled to two weeks' vacation and to vacation pay of $144.98. This was paid to her May 30th. She did not register nor claim benefits in week 27, but registered and claimed benefits in week 28. She got employment elsewhere July 15th. She signed a questionnaire July 21st and stated that she had already taken one week of vacation, June 27th to July 3d and that "Under the terms of the union agreement I am not required to designate any particular weeks as vacation weeks until the last two weeks in December."

Plaintiff Kenneth Nolte was laid off April 23d. The date of his recall does not appear. He was entitled to two weeks' vacation and vacation pay of $258.95. This was paid to him at his request May 2d. He ordinarily attended an army reserve camp and took his vacation at that time. In 1954 he attended camp in weeks 35 and 36; was unavailable for work and did not register nor claim benefits. He signed a questionnaire July 15th in which he stated: "I always go to camp for my vacation Army Reserves Aug. 22 to Sept. 5."

Plaintiff Minnie Schaffer had been absent on a leave of absence on account of pregnancy since August 14, 1953. She was notified of a layoff January 7, 1954. She had not been recalled at the time of the hearing. She was entitled to two weeks' vacation and vacation pay of $132.15. This was paid to her March 11th. She was not permitted to claim benefits until she canceled her leave. She canceled it April 17th and thereafter registered and claimed benefits. On July 14th she signed a questionnaire, stating: "Was on pregnant leave at time I was notified by mail that I was laid off. By union company agreement I do not have to designate vacation period until last two wks in December." The company conceded that week 1, prior to layoff, should be considered vacation rather than week 30, but maintained its position as to week 29.

Plaintiff Ione Stein was laid off June 23d and was recalled September 21st. She was entitled to two weeks' vacation and vacation pay of $192.56. This was paid to her June 25th. She had taken one week's leave before her layoff and she had not registered for work nor claimed benefits in week 27, the first week after she was laid off. During this week she was on vacation with her husband. On July 19th she signed a questionnaire in which she stated that she had already been on vacation June 7th to June 14th and June 28th to July 6th. She said, "I have already taken both wks of my vacation. Under the terms of our agreement I am entitled to my unemployment benefits." The company conceded that week 24 was her vacation instead of week 30 but maintained its position that week 29 was vacation.

Plaintiff Myron Wheeler was laid off May 20th and recalled September 21st. He was entitled to two weeks' vacation and vacation pay of $293.33. This was paid to him May 28th. He had not requested any particular weeks for vacation prior to his layoff but intended to take the first two weeks of layoff as vacation weeks. He did not register for work during week 22 nor claim benefits. He did register the following week and thereafter when he was advised by the department that he could not take the first two weeks as vacation weeks. He desired that one week of his vacation be allocated to week 22 and the other to some week in the future but up to the time of the hearing, he had not requested the allocation of his second week of his vacation to any particular week. He testified that under the previous practice he supposed he had until the end of the year to designate the second week. On July 22d he signed a questionnaire in which he stated, "According to the provisions of our contract, I am not required to designate any time off for vacation purposes until the last 2 weeks in December, 1954."

Plaintiff Corella Wallace was laid off May 20th. The date of her recall does not appear. She was entitled to two weeks' vacation and vacation pay of $210.68. This was paid to her July 8th. She testified that she took one week of vacation the last week in June, week 27, and did not register for work nor claim benefits. She understood that she could designate some other week as a vacation week between the time of the hearing and the end of the year. On July 15th she signed a questionnaire stating, "Under the terms of local 396 agreement I do not have to designate my remaining week until the last week in December." She did state that she had taken one week of her vacation from June 27th to July 4th.

Plaintiff Verner Chapman was laid off July 9th and recalled September 21st. He was entitled to two weeks' vacation and vacation pay of $195.16. This was paid to him in the latter part of June. He had taken one week's vacation before his layoff and had taken one week of leave of absence after being recalled and before the time of the hearing. He desired that the second week of vacation pay be allocated to the week of leave after recall. On July 14th he signed a questionnaire stating that he had already taken vacation from June 14th to June 20th and that he had asked for a week in hunting season. He also said, "I have already taken one week vacation [listed above]. I want the other week during hunting season. Our agreement states that we do not have to designate time off, as vacation until the last two weeks in December, 1954."

FAIRCHILD, J.

Plaintiffs claimed unemployment compensation benefits for weeks 29 and 30 (1954) after they were laid off from employment at Auto-Lite. By virtue of past service and the collective-bargaining agreement in effect at Auto-Lite, plaintiffs were entitled to receive a payment of a percentage of the amount earned by them in 1953. This is referred to in the agreement as "vacation pay." It is the position of Auto-Lite and the commission that, notwithstanding the change in plaintiffs' employment status by reason of the layoff, the vacation pay could be allocated to two weeks while plaintiffs were away from work because of the layoff so that under the statutory definition of wages (sec. 108.02(6), Stats.) the vacation pay would be wages "payable for" such two weeks and plaintiffs not "unemployed" during them. It is their further position that Auto-Lite had the right to designate which two weeks after the layoff were vacation weeks so that it having designated weeks 29 and 30, plaintiffs could not receive benefits for those weeks.

We agree with the first of these contentions, as did the circuit court. It could be argued with considerable force that an employee's accrued right to vacation pay, earned in 1953, ripened into an obligation on the part of the company to pay the money at the time the employee was laid off (see Pattenge v. Wagner Iron Works (1957), 275 Wis. 495, 498, 82 N.W.2d 172); and that no time after the termination of employment by layoff could be considered vacation, to which the payment could be allocated. Nevertheless, because of the purpose of an Unemployment Compensation Act the courts have generally considered that vacation pay properly may be considered as wages for weeks occurring after an employee has been laid off. Battaglia v. Board of Review (1951), 14 N.J. Super. 24, 81 A.2d 186; Reid v. Board of Review (1951), 155 Ohio St. 6, 97 N.E.2d 31; Renown Stove Co. v. Unemployment Compensation Comm. (1950), 328 Mich. 436, 44 N.W.2d 1.

In Wellman v. Riley (1949), 95 N.H. 507, 510, 67 A.2d 428, 429, it was said:

"The denial of compensation under the circumstances disclosed accords with what is understood to have been the general intent of the legislature in enacting the legislation. . . . The purpose of the act is to insure in limited measure against unemployment of individuals regularly attached to the labor market which is not occasioned with their consent or by their fault. . . . The payment of compensation for a period of vacation with pay is not within the scope of this purpose."

An employer may not retroactively designate a vacation time for a laid-off employee. Campbell Soup Co. v. Board of Review (1952), 20 N.J. Super. 80, 89 A.2d 262.

The rationale must be that if the vacation period be properly determined, an employee who has been laid off changes his status and becomes an employee on vacation for the designated weeks.

In adopting this proposition the probability that it has been widely accepted in practice in Wisconsin is persuasive.

It appears that the members of the advisory committee appointed under the Unemployment Compensation Act and composed of representatives of both employers and employees have considered that vacation pay can be allocated to periods of unemployment. In 1955, acting upon a recommendation of the advisory committee, the legislature also recognized this principle. The advisory committee had recommended a number of changes in ch. 108, Stats. These recommendations were incorporated in Bill No. 64, S., which became ch. 527, Laws of 1955. A note to the bill states, "This bill was prepared, and is unanimously recommended pursuant to 108.14(5m), by the statutory advisory committee on unemployment compensation, consisting of labor and management representatives." One of the changes was the creation of sub. (4) of sec. 108.05, Stats. Paragraph (b) thereof provides certain procedure for the allocation of vacation pay to weeks of "unemployment" and in the bill an explanatory note to that paragraph reads as follows:

"In most cases an employee's vacation pay is clearly allocated to a specific week, in advance; so he knows that it's wages for that week and will be so treated for benefit purposes.

"In some cases, however, an employee is unemployed before he has any vacation pay coming; or he doesn't know to what weeks his vacation pay will later be allocated. In such `iffy' or uncertain cases, such possible pay must be ignored for benefit purposes, in order to handle claims and payments promptly.

"In such a case, if the employee later receives vacation pay which hasn't been promptly allocated to a current week of actual vacation or unemployment the employer may apply such pay to a future week of unemployment or may withhold from it benefits for a past week, as specified above."

Of course, the specific provisions of the 1955 act do not apply to this case, but it is significant that, in providing a procedure for allocation of vacation pay to weeks of unemployment, the legislature seems to have assumed that such allocation had been valid in principle, but that confusion had arisen in practice because of the absence of a statutory formula.

We therefore hold that even in 1954, if vacation pay were properly allocated to a week during a period of layoff, it was wages for that week. Where it exceeded the weekly benefit rate, the employee receiving it would not have been even partially unemployed and would not have been entitled to benefits.

The second proposition advanced by Auto-Lite and the commission is a different matter. Under the agreement could Auto-Lite designate weeks 29 and 30 as vacation for laid-off employees who preferred different weeks?

As we have pointed out, if vacation pay is to be deemed wages for particular weeks after an employee has been laid off, it must be upon a theory that during those weeks he is on vacation and not laid off. It would be neither logical nor fair to look to the vacation provisions of the agreement in order to characterize the payment as wages for weeks of vacation, without giving full effect to any provision of the agreement which may give the employee some rights in choosing the time of vacation.

Vacation pay is a matter of contract. Skibb v. J. I. Case Co. (1949), 255 Wis. 447, 452, 39 N.W.2d 367. In decisions involving a claim of benefits for weeks designated by the employer as vacation, the courts have uniformly considered whether any contractual provisions limited the employer's discretion in determining the dates of vacations. See cases cited in annotation, "Right to unemployment compensation as affected by vacation or holiday or payment in lieu thereof." Anno. 30 A.L.R.2d 366. In a Michigan case an employer designated certain weeks as vacation. It had an agreement with a union representing some of its employees which provided for vacation with pay. It had an agreement with another union representing others, with a similar provision except that it also provided that the vacation be taken at a time mutually agreed upon and that the employees could accept pay in lieu of the vacation. The employees subject to the first contract were deemed by the court to have been on vacation and not entitled to benefits. Those under the second contract were deemed to have received bonuses rather than pay for vacation and to be entitled to benefits. Renown Stove Co. v. Unemployment Compensation Comm., supra.

Whether vacation pay is to be allocated to a period of shutdown or whether the employee may treat it as a bonus in lieu of vacation and the period of shutdown as unemployment is to be determined by the contract in force at the time. Hamlin v. Coolerator Co. (1949), 227 Minn. 437, 35 N.W.2d 616.

It is universally held that unless the agreement contains limitations upon the employer's discretion in setting the time for vacations, the employer has absolute discretion even though the amount of pay and length of vacation be prescribed by contract. In the agreement before us, there is a limitation, and we are to consider the extent of the limitation and how it is to be applied to the facts before us.

The controlling provision has been quoted in the statement of facts and consists of two sentences. The first relates primarily to fixing the time of payment of the vacation pay. It contemplates that the employee will at least initiate the selection of his vacation because he is required to give two weeks' notice of an intended vacation in order to assure receipt of payment before it begins. The second sentence provides, "The vacation period shall be set at a convenient time by the company, except that the wishes of the individual employees as to their vacation period shall be taken into consideration as much as possible." In practice the company set a "period" from early June to September in which individual choices were accepted as a matter of course unless production was interfered with by a concentration of selection of particular time. A period was also designated for hunting season and employees who took leaves at times other than the designated period were permitted to call them their vacation. This practice was followed in 1954 as to all employees not laid off.

We conclude that under the agreement the selection of vacation time by individual employees was to control unless the time selected conflicted with the company's convenience as determined by the company. It did not permit the company arbitrarily to select vacation time for the individual employees without regard to their wishes. It is clear that in 1954 the company arbitrarily did so as to plaintiffs while using its former standards as to a convenient time in the cases of employees not laid off.

The term "convenient time" means one when an individual vacation will not interfere with or embarrass the company's carrying on of business. "The right to set the time for an employee's vacation was given the company so that it could fix a time that would not interfere with the company's operations." Campbell Soup Co. v. Board of Review, supra (p. 83).

Plaintiffs' absence during weeks 29 and 30 was no more convenient to the company than during weeks 27 and 28 or 31, 32, etc. The company's convenience evidently required, not merely permitted, these plaintiffs to be away from work from their layoff and until recall. It at least permitted some of them to be absent prior to layoff and after recall when they were on leave of absence granted by the company.

It has been suggested that the company's determination that weeks 29 and 30 were a convenient time for vacation must be honored because such determination would prevent plaintiffs from drawing benefits from the company's reserve which they could draw if other weeks, when they did not draw benefits, were recognized as their vacations. In reply to this argument, we need only point out that there was nothing which made weeks 29 and 30 more convenient or less costly to the company except in those cases where the employee preferred some other weeks in which the employee could not or did not draw benefits. It would not be a reasonable construction of article VIII of the agreement to justify the company's designation of certain weeks on the ground of pecuniary advantage to the company when the only pecuniary advantage arose out of the frustration of the employees' wishes which the agreement said "shall be taken into consideration as much as possible."

It has been suggested that the plaintiffs, by failing to notify the company of their wishes before the company designated weeks 29 and 30, waived their rights to have their personal preferences considered. Such a conclusion would be unfair under the circumstances disclosed by the record. This was the first time the company had designated two particular weeks for vacation. It was following its past practice with all employees not laid off. There was some thought, evidenced by the union memorandum of January 7th and perhaps originally shared by the management at the La Crosse plant, that vacation pay would not affect unemployment compensation benefits. As soon as the management designated weeks 29 and 30, the employees promptly stated their positions in writing at the request of the unemployment compensation department.

In this respect, however, we conclude that the cases of plaintiffs Briggs, Wheeler, and Wallace are different from the rest. The company's position was made known to them in July. Nevertheless, up to the time of the hearing on November 9th, Briggs had not selected any particular weeks as vacation weeks and Wheeler and Wallace had selected only one week of the two to which they were entitled. It is true, of course, that these three plaintiffs were relying upon a past practice of the company whereby those employees who had not taken their time off until near the close of the year were permitted to take vacations at that time. This, however, was not a contractual right as they seemed to have thought. We cannot assume that these plaintiffs were permitted to take leave after the hearing and before the close of 1954. Plaintiff Briggs did not show that there were any weeks he was away from work in 1954 either upon leave of absence or upon layoff which he preferred to have treated as his vacation. He would not be entitled to draw benefits or wages for every week in the year and vacation pay besides. The same principle applies to plaintiffs Wheeler and Wallace except that each of them had shown one week during the period of layoff in which plaintiffs had not registered or claimed benefits. As to plaintiff Briggs the commission's order denying benefits was correct and the judgment setting it aside must be reversed. As to plaintiffs Wheeler and Wallace the commission's order of denial is correct as to week 29 but not as to week 30. The judgment setting it aside must be reversed but upon remand, it should be deemed that these plaintiffs received vacation pay for week 29 but not for week 30. As to all other plaintiffs, the judgment should be affirmed.

By the Court. — As to plaintiff Briggs the judgment is reversed, and cause remanded with instructions to confirm the decision of the Industrial Commission; as to plaintiffs Wheeler and Wallace the judgment is reversed, and cause remanded with instructions to set aside the decision of the Industrial Commission only in so far as it denies the claim for benefits for week 30 and to remand the record for further proceedings upon the claim of benefits for week 30; as to all other plaintiffs the judgment is affirmed.

CURRIE, J. (dissenting in part).

I cannot agree with the interpretation of the vacation clause of the collective-bargaining contract adopted by the majority opinion, nor with the holding that past vacation practices of the company had any materiality upon the issue of allocating weeks of vacation to layoff periods.

The material sentence of such contract governing vacations reads, "The vacation period shall be set at a convenient time by the company, except that the wishes of the individual employees as to their vacation period shall be taken into consideration as much as possible." The majority opinion restricts the meaning of the word " convenient" as only applicable to an interruption of production. This narrow and restricted interpretation overlooks entirely the right the company was undoubtedly seeking to protect by this clause.

Without any vacation clause in the contract the company would have had the unrestricted right to designate the vacation period of each employee. This right continued under the contract except in so far as it was yielded up by the clause in question. Under such clause the company's convenience still controlled, and the right of an employee to select a particular time for his vacation was subject to the express limitation that it would not interfere with the company's convenience. It surely would not have been the objective of the company to safeguard production as an end in itself but rather its costs of production. Among such costs were its contributions required under the Wisconsin Unemployment Compensation Act. Prior to 1954 the company had experienced a steady level of employment so that its unemployment compensation account had been built up to the point of requiring little or no further annual contributions. Any depletion of such account by payment of benefits would have to be replaced by the company by means of further contributions.

Therefore, in the situation which confronts us here, where employees were on layoff and the controversy is over whether weeks of such layoff period selected by the company or the employee shall govern, the real issue of convenience resolves itself down to cost. It will be of less expense for the company to have its designation of weeks 29 and 30 prevail, while certain plaintiffs would gain financially by having the vacation pay applied to other portions of the layoff period. Employees falling in this category are the plaintiffs Darling, Brudos, Harnisch, and Stein.

Up until the 1954 layoff for lack of business there had been no past practice with respect to designating weeks of vacation during a layoff. The situation with respect to such a layoff is so entirely different than that which prevails during production that it is difficult to see why past practices during production, as to permitting employees to have some choice of selection of their weeks of vacation, should have any application whatever to a period when they are on layoff.

Here, before weeks 29 and 30 arrived, the company designated such two weeks as the weeks of vacation for employees on layoff and paid them their vacation pay in advance of the beginning of such two weeks. This should be conclusive as to all plaintiffs who had not prior thereto, with the company's approval, designated different weeks for their vacations. However, the company had no right retroactively to change weeks of vacation previously selected by the employees. The claims for benefits of the plaintiffs Foellmi, Nolte, and Gildermeister for both weeks, and Schaffer, Wallace, and Wheeler as to one week each, should have been allowed on this basis. It is for this reason that I concur in the result of the majority opinion to this extent.

The claims of the plaintiffs Lemke, Schaffer, Wallace, and Wheeler as to their second week of vacation, and the plaintiff Briggs as to both weeks of vacation, fall into still another category. They contended that they had the right to wait until the layoff ended and the production had again started and then take their remaining vacation time to which they were entitled even if this did not occur until the last two weeks in December. Even under the majority opinion's highly restrictive interpretation of what was " convenient" for the company, it would seem to be inescapable that it would be more convenient for the company to have them take their vacation during the months of layoff rather than after production had resumed.

For the reasons hereinbefore stated, the following are the only claims of the plaintiffs which should have been allowed:

Foellmi for both weeks. Gildermeister for both weeks. Nolte for both weeks. Lemke for one week. Schaffer for one week (conceded by the company). Wheeler for one week. Wallace for one week. Chapman for one week.

The judgment of the circuit court in so far as it allowed claims of the plaintiffs beyond this should be reversed.

I am authorized to state that Mr. Justice BROADFOOT joins in this dissenting opinion.