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

PAULA J FIRKUS, Employee

UNITED PARCEL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06605452WK


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, except that it makes the following modifications:

Any reference to Wis. Stat. § 108.04(am) is changed to Wis. Stat. § 108.04(7)(am).

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 27 of 2006, if otherwise qualified.

Dated and mailed December 8, 2006
firkupa . umd : 115 : 1   VL 1007.01  VL 1007.15

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION


The employee worked more than 27 years in administrative support positions for the employer, a package shipping and delivery business.

Due to efficiencies achieved through new technology, the employer initiated a reduction in force in its administrative support positions. The employee's position was targeted for elimination.

The employee, who was assigned to a pay range 6 position, was offered the opportunity to bump less senior employees in three range 7 positions, or to accept early retirement. The employee believed that she didn't have the requisite skills, even with training, to satisfactorily perform any of the range 7 positions, so accepted early retirement. As a result, the less senior workers in these range 7 positions were able to keep their jobs. The employer awarded the employee an additional four weeks of severance pay because her decision to accept early retirement resulted in the retention of a less senior worker.

The employer only offered displacement/separation opportunities to certain workers in order to achieve parity between the number of eliminated positions and the number of separated workers.

Opting to accept early retirement is a quit. Dreifuerst v. Verizon North, Inc., UI Hearing No. 04400060FL MD (LIRC June 18, 2004); Hayes v. Verizon North, Inc., UI Hearing No. 04000016MD (LIRC Aug. 3, 2004).

The next question then is whether some exception to the quit disqualification would apply here.

While Wis. Stat. § 108.04(7)(am) provides that the quit disqualification will not apply if a claimant's separation was in lieu of a suspension or termination by the employer of another worker, for this exception to apply the commission requires credible evidence that the employer had definitely elected to terminate or suspend one or more people, and that the employee claiming this statutory exception can demonstrate that she accepted termination or suspension in lieu of termination or suspension of some other worker. Berry et al v. LIRC and Dept. of Military Affairs, 213 Wis. 2d 397, 570 N.W.2d 610 (Ct. App. 1997); Dreifuerst supra.

Here, the record shows that the employee's position, and other positions, were slated for elimination as part of a reduction in force, which was ultimately achieved by the employer, and that, had the employee not chosen early retirement but instead exercised the displacement option, a less senior worker would have been laid off. See, Pomasl v. The Proctor/Gamble Paper Products Co., UI Hearing No. 05400280GB (LIRC Sept. 28, 2005).

The requirements of Wis. Stat. § 108.04(7)(am) have been satisfied, and the employee is eligible for benefits as a result.

cc: United Parcel Service, Inc. (Elm Grove, Wisconsin)



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