108.04(8)(e)
(e) If the department determines that a failure under this subsection has occurred with good cause, but that the employe is unable to work or unavailable for work, the employe shall be ineligible for the week in which such failure occurred and while such inability or unavailability continues.
108.04(8)(f)
(f) This subsection does not apply to an individual claiming extended benefits if the individual fails to provide sufficient evidence that his or her prospects for obtaining work in his or her customary occupation within a period of time not exceeding 4 weeks, beginning with the first week of eligibility for extended benefits, are good.
108.04(9)
(9) Protection of labor standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
108.04(9)(a)
(a) If the position offered is vacant due directly to a strike, lockout or other labor dispute;
108.04(9)(b)
(b) If the wages, hours (including arrangement and number) or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;
108.04(9)(c)
(c) If as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.
108.04(10)(a)(a) An employe who has left or partially or totally lost his or her work with an employing unit because of a strike or other bona fide labor dispute, other than a lockout, is not eligible to receive benefits based on wages paid for employment prior to commencement of the dispute for any week in which the dispute is in active progress in the establishment in which the employe is or was employed, except as provided in
par. (b).
108.04(10)(b)
(b) An employe who did not establish a benefit year prior to commencement of a strike or other bona fide labor dispute, other than a lockout, may establish a benefit year after commencement of the dispute if the employe qualifies to establish a benefit year under
s. 108.06 (2) (a), but the wages paid to the employe for employment prior to commencement of the dispute shall be excluded from the employe's base period wages under
sub. (4) (a) and
ss. 108.05 (1) and
108.06 (1) for any week in which the dispute is in active progress in the establishment in which the employe is or was employed.
108.04(10)(c)
(c) For purposes of this subsection, if the active progress of a strike or other bona fide labor dispute ends on a Sunday, it is not in "active progress" in the calendar week beginning on that Sunday as to any employe who did not normally work on Sundays in the establishment in which the labor dispute occurs.
108.04(10)(d)
(d) In this subsection, "lockout" means the barring of one or more employes from their employment in an establishment by an employer as a part of a labor dispute, which is not directly subsequent to a strike or other job action of a labor union or group of employes of the employer, or which continues or occurs after the termination of a strike or other job action of a labor union or group of employes of the employer.
108.04(11)(a)(a) If a claimant, in filing his or her application for benefits or claim for any week, conceals any part of his or her wages earned in or paid or payable for that week, or conceals his or her refusal within that week of a job offer or any other material fact relating to his or her eligibility for benefits, so much of any benefit payment as was paid because of such concealment shall be recovered by the department as an overpayment.
108.04(11)(b)
(b) The department shall also require any claimant to forfeit for an act of concealment the following amount of benefits:
108.04(11)(b)1.
1. Not less than 25% of nor more than 4 times the claimant's benefit rate under
s. 108.05 (1) for the week for which the claim is made for any single act of concealment which results in no overpayment or in an overpayment of less than 50% of that benefit rate; or
108.04(11)(b)2.
2. Not less than one nor more than 4 times the claimant's benefit rate under
s. 108.05 (1) for the week for which the claim is made for any single act of concealment which results in an overpayment of 50% or more of that benefit rate.
108.04(11)(bm)
(bm) The forfeiture established under
par. (b) may be applied against benefits which would otherwise become payable to the claimant for weeks of unemployment occurring after the week of concealment and within 6 years after the date of an initial determination issued under
s. 108.09 finding that a concealment occurred. If no benefit rate applies to the week for which the claim is made, the department shall use the claimant's benefit rate for the claimant's next benefit year beginning after the week of concealment to determine the forfeiture amount. If the benefits forfeited would otherwise be chargeable to an employer's account, the department shall charge the amount of benefits forfeited to the employer's account and shall credit the fund's balancing account for that amount. Any forfeiture amount of less than $1 shall be rounded up to the nearest whole dollar.
108.04(11)(c)
(c) Any employing unit that aids and abets a claimant in committing an act of concealment described in
par. (a) may, by a determination issued under
s. 108.10, be required, as to each act of concealment the employing unit aids and abets, to forfeit an amount equal to the amount of the benefits the claimant improperly received as a result of the concealment. The amount forfeited shall be credited to the administrative account.
108.04(11)(d)
(d) In addition to other remedies, the department may, by civil action, recover any benefits obtained by means of any false statement or representation.
108.04(11)(e)
(e) This subsection may be applied even when other provisions, including penalty provisions, of this chapter are applied.
108.04(12)(b)(b) Any individual who receives, through the department, any other type of unemployment benefit or allowance for a given week is ineligible for benefits for that same week under this chapter, except as specifically required for conformity with the federal trade act of 1974 (
P.L. 93-618).
108.04(12)(c)
(c) Any individual who receives unemployment compensation for a given week under any federal law through any federal agency shall be ineligible for benefits paid or payable for that same week under this chapter.
108.04(12)(d)
(d) Any individual who receives unemployment compensation for a given week under the law of any other state (with no use of benefit credits earned under this chapter) shall be ineligible for benefits paid or payable for that same week under this chapter.
108.04(12)(e)
(e) Any individual who receives a temporary total disability payment for a whole week under
ch. 102 or under any federal law which provides for payments on account of a work-related injury or illness analogous to those provided under
ch. 102 shall be ineligible for benefits paid or payable for that same week under this chapter unless otherwise provided by federal law. A temporary total disability payment or a temporary partial disability payment under those provisions received by an individual for part of a week shall be treated as wages for purposes of eligibility for benefits for partial unemployment under
s. 108.05 (3).
108.04(13)(a)(a) The department shall apply any provision of this chapter which may disqualify a claimant from receiving benefits whether or not the claimant's employing unit questions the claimant's eligibility or files the report required under
s. 108.09 (1).
108.04(13)(b)
(b) If an employer fails to file the required wage report under
s. 108.205 for an employe who has claimed benefits from the employer's account, the department may compute and proceed to pay the benefits thus claimed, based on the claimant's statements and any other information then available.
108.04(13)(c)
(c) If an employer, after notice of a benefit claim, fails to file an objection to the claim under
s. 108.09 (1), any benefits allowable under any resulting benefit computation shall, unless the department applies a provision of this chapter to disqualify the claimant, be promptly paid. Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid prior to the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer. If benefits are erroneously paid because the employer and the employe are at fault, the department shall charge the employer for the benefits and proceed to create an overpayment under
s. 108.22 (8) (a). If benefits are erroneously paid without fault on the part of the employer, regardless of whether the employe is at fault, the department shall charge the benefits as provided in
par. (d), unless
par. (e) applies, and proceed to create an overpayment under
s. 108.22 (8) (a). If benefits are erroneously paid because an employer is at fault and the department recovers the benefits erroneously paid under
s. 108.22 (8), the recovery does not affect benefit charges made under this paragraph.
108.04(13)(d)
(d) If the department finds that any benefits charged to an employer's account have been erroneously paid to an employe without fault by the employer, the department shall notify the employe and the employer of the erroneous payment. If recovery of an overpayment is permitted under
s. 108.22 (8) (c) and benefits are currently payable to the employe from the employer's account, the department may correct the error by adjusting the benefits accordingly. To correct any erroneous payment not so adjusted, whenever recovery of an overpayment is permitted under
s. 108.22 (8) (c), the department shall restore the proper amount to the employer's account and charge that amount to the fund's balancing account, and shall thereafter reimburse the balancing account by crediting to it benefits which would otherwise be payable to, or cash recovered from, the employe, unless the employer is a government unit or nonprofit organization which has elected reimbursement financing. To correct any erroneous payment not so adjusted from the account of an employer which is a government unit or a nonprofit organization and which has elected reimbursement financing, whenever recovery of an overpayment is permitted under
s. 108.22 (8) (c), the department shall credit to the account benefits which would otherwise be payable to, or cash received from, the employe.
108.04(13)(e)
(e) If the department erroneously pays benefits from one employer's account and a 2nd employer is at fault, the department shall credit the benefits paid to the first employer's account and charge the benefits paid to the 2nd employer's account. Filing of a tardy or corrected report or objection does not affect the 2nd employer's liability for benefits paid prior to the end of the week in which the department makes a recomputation of the benefits allowable or prior to the end of the week in which the department issues a determination concerning any eligibility question raised by the report or by the 2nd employer. If the department recovers the benefits erroneously paid under
s. 108.22 (8), the recovery does not affect benefit charges made under this paragraph.
108.04(13)(f)
(f) If benefits are erroneously paid because the employer fails to file a report required by this chapter, fails to provide correct and complete information on the report, fails to object to the benefit claim under
s. 108.09 (1) or aids and abets the claimant in an act of concealment as provided in
sub. (11), the employer is at fault. If benefits are erroneously paid because an employe commits an act of concealment as provided in
sub. (11) or fails to provide correct and complete information to the department, the employe is at fault.
108.04(14)
(14) War-time application of subsection (7) or (8). If the department finds that the official war-time manpower policies of the United States are or may be materially hampered, in any clearly definable class of cases, by any application of
sub. (7) or
(8), so as to interfere with the effective war-time use of civilian manpower in Wisconsin, the department may by general rule, after public hearing, modify or suspend such application accordingly.
108.04(16)(a)(a) Benefits shall not be reduced under
sub. (1) (a), or denied under
sub. (2) or
(8) or
s. 108.141 (3g) to any otherwise eligible individual for any week because the individual is enrolled in a full-time course of vocational training or basic education which is a prerequisite to such training, provided it is determined that:
108.04(16)(a)1.
1. The individual possesses aptitudes or skills which can be usefully supplemented by training; and
108.04(16)(a)2.
2. The course is expected to increase the individual's opportunities to obtain employment, does not grant substantial credit leading to a bachelor's or higher degree, and is given by a school established under
s. 38.02 or other training institution approved by the department; and
108.04(16)(a)3.
3. The individual can reasonably be expected to complete the training course successfully, and to find and accept work; and
108.04(16)(a)4.
4. The individual attended the training course full time during the given training week or had good cause for failing to do so, and is making satisfactory progress in the course. The department may require the training institution to file a certification showing the individual's attendance and progress.
108.04(16)(b)
(b) The requalifying employment requirement under
subs. (7) and
(8) and the general qualifying requirements under
sub. (2) do not apply to an individual as a result of the individual's enrollment in training or leaving unsuitable work to enter or continue training under
19 USC 2296.
108.04(16)(c)
(c) Benefits may not be denied to an otherwise eligible individual under
par. (a) who is enrolled in a program under the plan of any state for training for dislocated workers under
29 USC 1661, notwithstanding the failure of such training to meet any of the requirements of
par. (a) 1. to
4.
108.04(17)(a)(a) A school year employe of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:
108.04(17)(a)1.
1. During the period between 2 successive academic years or terms, if the school year employe performed such services for an educational institution in the first such year or term and if there is reasonable assurance that he or she will perform such services for an educational institution in the 2nd such year or term; or.
108.04(17)(a)2.
2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employe provides for such a period, if the school year employe performed such services for an educational institution in the first such term and if there is reasonable assurance that he or she will perform such services for an educational institution in the 2nd such term.
108.04(17)(b)
(b) A school year employe of a government unit or nonprofit organization which provides services to or on behalf of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:
108.04(17)(b)1.
1. During the period between 2 successive academic years or terms, if the school year employe performed such services for such a government unit or nonprofit organization in the first such year or term and if there is reasonable assurance that he or she will perform such services for such a government unit or nonprofit organization in the 2nd such year or term; or
108.04(17)(b)2.
2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employe provides for such a period, if the school year employe performed such services for such a government unit or nonprofit organization in the first such term and if there is reasonable assurance that he or she will perform such services for such a government unit or nonprofit organization in the 2nd such term.
108.04(17)(c)
(c) A school year employe of an educational service agency who performs services in an instructional, research or principal administrative capacity, and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs:
108.04(17)(c)1.
1. During the period between 2 successive academic years or terms, if the school year employe performed such services for an educational service agency in the first such year or term and if there is reasonable assurance that he or she will perform such services for an educational service agency in the 2nd such year or term; or
108.04(17)(c)2.
2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employe provides for such a period, if the school year employe performed such services for an educational service agency in the first such term and if there is reasonable assurance that he or she will perform such services for an educational service agency in the 2nd such term.
108.04(17)(d)
(d) A school year employe of an educational institution who performs services other than in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employe performed such services for an educational institution in the first such year or term and there is reasonable assurance that he or she will perform such services for an educational institution in the 2nd such year or term.
108.04(17)(e)
(e) A school year employe of a government unit or nonprofit organization which provides services to or on behalf of an educational institution who performs services other than in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employe performed such services for such a government unit or nonprofit organization in the first such year or term and there is reasonable assurance that he or she will perform such services for such a government unit or nonprofit organization in the 2nd such year or term.
108.04(17)(f)
(f) A school year employe of an educational service agency who performs services other than in an instructional, research or principal administrative capacity, and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employe performed such services for an educational service agency in the first such year or term and there is reasonable assurance that he or she will perform such services for an educational service agency in the 2nd such year or term.
108.04(17)(g)
(g) A school year employe of an educational institution who performs services as described in
par. (a) or
(d) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employe performed such services for an educational institution in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that he or she will perform the services described in
par. (a) or
(d) for an educational institution in the period immediately following the vacation period or holiday recess.
108.04(17)(h)
(h) A school year employe of a government unit or nonprofit organization which provides services to or on behalf of an educational institution who performs the services described in
par. (b) or
(e) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employe performed such services for such a government unit or nonprofit organization in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that the school year employe will perform the services described in
par. (b) or
(e) for such a government unit or nonprofit organization in the period immediately following the vacation period or holiday recess.
108.04(17)(i)
(i) A school year employe of an educational service agency who performs the services described in
par. (c) or
(f), and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employe performed such services for an educational service agency in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that the school year employe will perform the services described in
par. (c) or
(f) for an educational service agency in the period immediately following the vacation period or holiday recess.
108.04(17)(j)
(j) A school year employe who did not establish a benefit year prior to becoming ineligible to receive benefits under
pars. (a) to
(i) may establish a benefit year on or after that date if the school year employe qualifies to establish a benefit year under
s. 108.06 (2) (a), but the wages paid the school year employe for any week during which
pars. (a) to
(i) apply shall be excluded from the school year employe's base period wages under
sub. (4) (a) and
ss. 108.05 (1) and
108.06 (1) for any week during which
pars. (a) to
(i) apply. A school year employe who established a benefit year prior to becoming ineligible to receive benefits under
pars. (a) to
(i) may receive benefits based on employment with other employers during the benefit year only if he or she has base period wages from such employment sufficient to qualify for benefits under
sub. (4) (a) and
ss. 108.05 (1) and
108.06 (1) for any week during which
pars. (a) to
(i) apply.
108.04(17)(k)
(k) If benefits are reduced or denied to a school year employe who performed services other than in an instructional, research or principal administrative capacity under
pars. (d) to
(f), and the department later determines that the school year employe was not offered an opportunity to perform such services for the employer in the 2nd academic year or term, the department shall recompute the school year employe's base period wages under
sub. (4) (a) and
ss. 108.05 (1) and
108.06 (1) and shall make retroactive payment of benefits for each week of such reduction or denial if the school year employe:
108.04(17)(k)1.
1. Establishes a benefit year for the period for which retroactive payment is to be made, in the manner prescribed by rule of the department, if the school year employe has not established such a benefit year;
108.04(17)(k)2.
2. Files a claim under
s. 108.08 for each week of reduction or denial in the manner prescribed by rule of the department; and
108.04(17)(k)3.
3. Was otherwise eligible to receive benefits for those weeks.
108.04(18)(a)(a) The wages paid to an employe who performed services while the employe was an alien shall, if based on such services, be excluded from the employe's base period wages for purposes of
sub. (4) (a) and
ss. 108.05 (1) and
108.06 (1) unless the employe is an alien who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for the purpose of performing such services, or was permanently residing in the United States under color of law at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of section 212 (d) (5) of the federal immigration and nationality act (
8 USC 1182 (d) (5)). All claimants shall be uniformly required to provide information as to whether they are citizens and, if they are not, any determination denying benefits under this subsection shall not be made except upon a preponderance of the evidence.
108.04(18)(am)
(am) Paragraph (a) does not preclude an employe from establishing a benefit year during a period in which the employe is ineligible to receive benefits under
par. (a) if the employe qualifies to establish a benefit year under
s. 108.06 (2) (a).
108.04(18)(b)
(b) Any amendment of s. 3304 (a) (14) of the federal unemployment tax act specifying conditions other than as stated in
par. (a) for denial of benefits based on services performed by aliens, or changing the effective date for required implementation of
par. (a) or such other conditions, which is a condition of approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, shall be applicable to this subsection.
108.04(19)
(19) Professional athletes. An employe who performs services substantially all of which consist of participating in sports or athletic events, or training or preparing to so participate, shall be ineligible for benefits based on any employment for any week of unemployment which occurs during the period between 2 successive sport seasons or similar periods if the employe performed such services in the first such season or period and there is a reasonable assurance that the employe will perform such services in the 2nd such season or period.
108.04 History
History: 1971 c. 40,
42,
53,
211;
1973 c. 247;
1975 c. 24,
343;
1977 c. 127,
133,
286,
418;
1979 c. 52,
176;
1981 c. 28,
36,
315,
391;
1983 a. 8,
27,
99,
168;
1983 a. 189 s.
329 (28);
1983 a. 337,
384,
468,
538;
1985 a. 17,
29,
40;
1987 a. 38 ss.
23 to
59,
107,
136;
1987 a. 255,
287,
403;
1989 a. 77;
1991 a. 89;
1993 a. 112,
122,
373,
492;
1995 a. 118,
417,
448.
108.04 Annotation
Employes at Wisconsin terminals of trucking companies laid off as a result of a strike at the Chicago terminal are eligible for unemployment compensation because the Chicago terminal is a separate establishment. Liberty Trucking Co. v. ILHR Dept. 57 W (2d) 331, 204 NW (2d) 457.
108.04 Annotation
In (9) the words "new work" include indefinitely laid off employes who are recalled as well as new job applicants. The department must determine whether a laid-off employe had good cause for refusing work on a different shift with a higher pay scale. Allen-Bradley Co. v. ILHR Dept. 58 W (2d) 1, 205 NW (2d) 129.
108.04 Annotation
When a union which had given a notice of contract termination withdrew it before a strike began, there was no labor dispute in progress when the employer later closed the plant. Kansas City Star Co. v. ILHR Dept. 60 W (2d) 591, 211 NW (2d) 488.
108.04 Annotation
Sub. (10) discussed in concurring and dissenting opinions on rehearing. Kansas City Star Co. v. ILHR Dept. 62 W (2d) 783, 217 NW (2d) 666.
108.04 Annotation
An employe was guilty of misconduct as a matter of law under (5) and (6) because his reaction put a dangerous object in the air and thereby endangered the safety of anyone in its path. McGraw-Edison Co. v. ILHR Dept. 64 W (2d) 703, 221 NW (2d) 677.
108.04 Annotation
Where the self-employed claimant was both the employe and the employer he could not disassociate the fault or misfortune of himself as an employer so as to become eligible for unemployment benefits under (7) (b). Fish v. White Equip. Sales & Service, Inc. 64 W (2d) 737, 221 NW (2d) 864.
108.04 Annotation
Masons unemployed because their employer locked out masons' laborers were ineligible under (10) for benefits because masons would be working "but for" a bona fide labor dispute. De Leeuw v. DILHR, 71 W (2d) 446, 238 NW (2d) 706.
108.04 Annotation
Employer's grooming code may be justified notwithstanding employes' constitutional right to choice of hairstyle. Consolidated Const. Co., Inc. v. Casey, 71 W (2d) 811, 238 NW (2d) 758.
108.04 Annotation
Where record of a meeting indicated that employes would not be rehired, (10) did not apply and employes were eligible for benefits subsequent to discharge. Carley Ford, Lincoln, Mercury v. Bosquette, 72 W (2d) 569, 241 NW (2d) 596.
108.04 Annotation
"Fault" under (1) (f), in context of employe's failure to pass licensing examination, means blameworthy or negligent conduct, not incompetence. Milwaukee County v. DILHR, 80 W (2d) 445, 259 NW (2d) 118.
108.04 Annotation
Picketing in violation of collective bargaining agreement was misconduct under (6) (a). Universal Foundry Co. v. ILHR Dept. 86 W (2d) 582, 273 NW (2d) 324 (1979).
108.04 Annotation
Indefinite layoff severed employment relationship. A. O. Smith Corp. v. ILHR Dept. 88 W (2d) 262, 276 NW (2d) 279 (1979).
108.04 Annotation
Where sole shareholders were also sole employes, their decision as shareholders to file for voluntary bankruptcy disqualified them for unemployment benefits. Hanmer v. ILHR Dept. 92 W (2d) 90, 284 NW (2d) 587 (1979).
108.04 Annotation
Employe who refused on religious grounds to pay mandatory union dues did not voluntarily terminate employment under (7) (a). Nottelson v. DILHR, 94 W (2d) 106, 287 NW (2d) 763 (1980).
108.04 Annotation
Employe who voluntarily terminated parttime employment which, prior to termination, had not affected eligibility, became ineligible under (7) (a). Ellingson v. DILHR, 95 W (2d) 710, 291 NW (2d) 649 (Ct. App. 1980).
108.04 Annotation
Employe who was transferred to workplace 25 miles away and who did not receive pay increase to cover increased commuting costs had good cause to quit. Farmers Mill of Athens, Inc. v. DILHR, 97 W (2d) 576, 294 NW (2d) 39 (Ct. App. 1980).
108.04 Annotation
Falsification with respect to criminal record on employment application constitutes "misconduct" under (5), regardless of materiality to employe's particular job. Miller Brewing Co. v. DILHR, 103 W (2d) 496, 308 NW (2d) 922 (Ct. App. 1981).
108.04 Annotation
Objective test for misconduct discussed. Wehr Steel Co. v. DILHR, 106 W (2d) 111, 315 NW (2d) 357 (1982).
108.04 Annotation
Sub. (10) does not deny equal protection to nonstriking workers laid off because of a strike. Jenks v. DILHR, 107 W (2d) 714, 321 NW (2d) 347 (Ct. App. 1982).
108.04 Annotation
Under (1) or (7), pregnant employe who could not perform her specific job but could do other work was eligible for benefits. Rhinelander Paper Co., Inc. v. DILHR, 120 W (2d) 162, 352 NW (2d) 679 (Ct. App. 1984).
108.04 Annotation
Teacher who forgot to accept employment offer under 118.22 (2) and who was consequently terminated did not voluntarily terminate employment under 108.04 (7). Nelson v. LIRC, 123 W (2d) 221, 365 NW (2d) 629 (Ct. App. 1985).
