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

NORMAN C SANNES, Employee

VERIZON NORTH INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04000042MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits in weeks 47 through 51 of 2003, and until he has earned wages in covered employment performed after the week of quitting equaling at least four times the $329 weekly benefit rate which would have been payable had the quitting not occurred. The employee is required to repay the sum of $658 to the Unemployment Reserve Fund.

Dated and mailed August 17, 2004
sanneno . usd : 145 : 1  VL 1007.01 VL 1007.15

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In his petition for commission review the employee asserts that the employer's attempt to reduce its workforce was similar to past offers made to workers because although the packages had unique items the goal was to reduce workforce. However, the employee did not establish that he quit his employment "in lieu of" the termination of another worker's employment pursuant to Wis. Stat. § 108.04(7)(am). In this case, the employee did not "identify another individual, or group of individuals, who were able to keep working as a direct result of the claimant's voluntary action." Berry v. LIRC, 213 Wis.2d 397, 570 N.W.2d 610 (Ct. App. 1997). The employee must establish more than that he quit pursuant to a reduction-in-force program in order to satisfy Wis. Stat. § 108.04(7)(am). Dreifuerst v. Verizon North Inc., UI Dec. Hearing No. 04400060FL (LIRC June 18, 2004). Kathleen Newman v. Verizon Services Organization Inc, UI Dec. Hearing No. 04000131MD (LIRC August 8, 2004); and Hayes v. Verizon North Inc. UI Dec. No. 04000016MD (LIRC August 3, 2004).

The ALJ correctly determined that in the other cases, in which benefits were allowed, the employer had indicated it was going to eliminate a specific number of jobs, usually in a specified area. In this case the employer intended to offer the voluntary early retirement package, and if it did not have sufficient workers who were willing to accept the package it would have considered other cost saving measures.

The employee argues that the employer did not provide information to inform workers how many people had volunteered for the program. As such, the employee believed his job would be eliminated or he would have to accept a less favorable retirement package in the future. On the other hand, the employer did not inform him that his job would be eliminated if he did not take the program, he only feared that such would be the case. The employee's assumption that he was going to be laid off was speculative. The employee made a choice to quit and his quitting was not in lieu of a suspension or termination of another employee's work.

The employee further challenges some of the ALJ's findings as being unsupported by the record. For example, he challenges the ALJ's findings that the benefits offered to him were considerably more generous than those offered to non-union workers in involuntary layoff situations. The employer's witness testified that the prior packages did not include the year's worth of medical and dental coverage and the five-percent pension payment. Further, the amount of the package is not relevant to the question of whether the employee resigned in lieu of another worker who was at risk.

The employee further argues that the extension of the rescission window was the result of legal issues and not caused by the fact that such a large number of workers accepted the package. Even if this were the case, it does not establish that the employee resigned in lieu of another worker who would have been laid off.

With respect to the findings about eliminating specific jobs or a targeted number of jobs, the ALJ's findings are based on the credible testimony of the manager of employee services at page 17 of the synopsis. She specifically testified that there were no groups targeted for elimination and that if not enough workers took the package the employer would have had to look for ways to reduce costs, including moving people from leased buildings into buildings owned by the company.

Finally, the employee asserts that workers were allowed unemployment benefits in a case where the employer offered union workers a package that did not target a specific number of workers to be laid off. Essentially, the employee is arguing that workers received unemployment benefits to which they were not entitled because they did not meet the statutory criteria. However, the evidence in the record demonstrates that in this case, the employee did not meet any statutory exception that would allow for immediate benefit payment. If workers were incorrectly awarded benefits those determinations were incorrect, but that does not mean that the commission should award the employee benefits to which he was not entitled based on a prior incorrect decision.

cc: Sharon Hankins


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uploaded 2004/08/23