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

ALICE F LEE, Employee

COUNTY OF DOUGLAS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201294EC


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:

In the penultimate sentence of the fifth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section, the reference to "May 15" is changed to "May 8.'"

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 20 of 2006, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed December 8, 2006
leealic . umd : 115 : 1   VL 1007  VL 1014

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner



MEMORANDUM OPINION


The employee worked for the employer, a county government, for 23 years in its sole Certified Nurses Aide (CNA) position. This position was assigned to the employer's Division of Health and Human Services, and performed home health care for the employer's clients.

The employee sustained a work-related injury in April of 2005. In December of 2005, during her healing period, realizing that she was no longer physically able to perform the lifting duties of the CNA position, the employee posted for a clerical Office Specialist 2 position in accordance with the provisions of the applicable collective bargaining agreement. The skills and experience required for this position, as stated in the posting, included computer skills and a minimum typing speed of 50 words per minute.

The employee was appointed to this Office Specialist 2 position effective January 1, 2006. As required by the collective bargaining agreement, the probationary period for this position was 20 days, which could be extended for an additional 30 days for performance reasons. The employee's probationary period was extended by the employer. At the end of the 50-day probationary period, the employer advised the employee that she had not satisfied probationary performance expectations, particularly in regard to the computer-related duties of the position.

As a result, effective March 14, the employee was restored to her former CNA position. Since she was physically unable to perform the lifting duties of this position, the employee was temporarily assigned to light office duties in the Division of Health and Human Services. There was no permanent light duty assignment available.

In lieu of a medical termination, the employer offered the employee the opportunity to again be appointed to the Office Specialist 2 position, this time with an extended six-month probationary period, and with the understanding that the employee would undergo training in the areas in which she had little prior training or experience, including Microsoft Excel and Word. The employee tentatively agreed to this offer but indicated she wanted to discuss it with her union representatives.

On April 21, the employee's union representative met with the employer to discuss an agreement, intended to constitute a side letter to the collective bargaining agreement, drafted by the employer and incorporating the terms discussed earlier with the employee.

On April 25, the employee and her union representative met with the employer to discuss the draft side letter. The employee indicated she would think about it.

On April 27, the employee and her union representative again met with the employer. The employee requested a change in a provision relating to testing if she were to post into a different Office Specialist 2 position, and the employer agreed to this change. The employee indicated she was willing to accept the modified side letter but wanted the district union representative to review it.

The modified side letter was sent by facsimile transmission to the district union representative for her review on April 27.

The employee and the supervisor of the Office Specialist 2 position, on or before April 28, established a tentative training plan for the employee.

The modified side letter stated as follows, in relevant part:

Communications Workers of America, hereinafter referred to as the Union, and Douglas County enter into this agreement on a one time non-precedent-setting basis to extend the probationary period to six months for Alice Lee in the Office Specialist 2 position in the Health and Human Services Department.

As a condition of this probationary extension, the Union and Alice Lee agree that

The probationary period will be six (6) months

The Union will agree that Management has the sole right to determine if these expectations are being met. Failure to successfully complete the probationary period will result in termination.

The employer met with the district union representative on May 2. The district union representative requested information as to what accommodations had been made for the employee in her CNA position. The employer indicated that there was no reasonable available accommodation since the CNA position required lifting 50 pounds and pulling/pushing 200 pounds, and the employee's treating physician, in February of 2006, had permanently restricted her to lifting no more than 15 pounds. The district union representative advised the employer that the union did not agree to the terms of the draft side letter, but did not indicate why. Apparently, since certain terms of the draft side letter, including that permitting the employee to serve an extended six-month probationary period, were outside the scope of the collective bargaining agreement, the acquiescence of the union was required.

By letter dated May 3 to the employee's union representative, Michele Wick, the employer set forth its understanding that the employee had agreed to the terms of the agreement but the union had not, and established a deadline of Monday, May 8, for the employee and union to finally respond to the offer embodied in the agreement.

The employer did not receive a final response to the offer on or before May 8.

The employee and her union representative met with the employer at the employer's request on May 12. At that meeting, the employee and the union were again provided the opportunity to sign the side letter but declined to do so. As a result, the employment relationship ended.

In her statement to the department adjudicator (exhibit #3), which the employee testified was accurate, the employee indicated as follows, as relevant here:

I went to that meeting [on May 12] and [the employer] said if I wanted to continue my employment I had to agree to additional training and an extended probationary period. They had been talking about this agreement since April because I didn't have the right skills for the office specialist job. The union advised me not to accept the agreement and so I didn't. I was aware that I could continue my employment at the same rate of pay, hours, location, and job duties if I signed the agreement and that if I didn't I wouldn't have a job. I didn't accept the agreement because I didn't think I would be able to do the job. I just don't have the computer skills. Every day that I went there my stomach was in a knot. They wanted me to learn Excel and I just didn't think that I could do it. The union was trying to get my CNA job back. I could have kept the office specialist job in the meantime but I didn't think I would be able to perform the job duties, so I declined the agreement at the meeting on 5/12/06...

The employee testified (see p. 21 of synopsis) that:

I didn't sign the side letter even though I was in agreement to do the training because I was advised not to. Even if I had signed it the union was not going to sign it. I was put in the middle between the union and the administration.

The employee's union representative Wick first testified that, "the union said during that meeting (presumably the meeting of May 2] that the employee would not be signing the agreement because she would be signing away all her rights. The county has a system of negotiating everything, but they did not on this issue. So, we couldn't sign it because there were no negotiations on it." Wick then testified that "The CNA position and the Office Specialist 2 position were both union positions. The employee wouldn't be losing any rights by going from one union position to another union position....Management did have the right to terminate...if the employee was not doing the job."

In her testimony, Wick also appeared to indicate that the union took issue with the provision in the side letter giving the employer "the sole right to determine if these expectations are being met." However, Wick failed to explain how this differed from the typical management right to establish performance expectations and evaluate whether a worker has met those expectations, or how this differed from the employee's existing contract rights.

The commission also notes that Wick first testified that the employer failed to negotiate the terms of the side letter by refusing to change any language in the original draft. Wick later conceded in her testimony that the employer had agreed to modify language relating to the employee's future bumping rights. In addition, as discussed above, at the employee's/union's request, the employer also modified language relating to the employee's future testing requirements.

The separation was a quit, not a discharge. The employee had the opportunity, by signing the side letter, to remain employed in a position at the same rate of pay, hours, location, benefits, and contract rights, as her previous CNA position, but declined to do so. See, Doyle v. Village of Genoa City, UI Hearing No. 05000685MD (LIRC May 31, 2005)(separation resulting from employee's refusal to sign last chance agreement upon advice of union was quitting).

The next question then would be whether this quitting satisfied any exception to the quit disqualification.

The only exception which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." This has been defined as a real and substantial act or omission by the employer that reasonably justifies the employee's decision to become unemployed rather than to continue working. See, Stetz v. DILHR, et al., Case No. 136-215 (Wis. Cir. Ct. Dane Co., February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that she explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that she is considering terminating her employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Wis. Cir. Ct. Milw. Co., Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999).

The employee has offered several explanations for her refusal. Primary among them are the advice she received from the union and her concern that she would not have the skills, even after further training, to do the job.

The record shows, however, that the employee could type at least 50 words per minute, and had, at a minimum, certain rudimentary office and computer skills and experience. The training she was being offered (exhibit #6) included individual training in basic Windows operations, and classroom training in Microsoft Word and word processing, and Microsoft Excel. Given her background and these training opportunities, it was certainly not inevitable that the employee would be incapable of acquiring the necessary computer skills to satisfactorily perform the duties and responsibilities of the Office Specialist 2 position.

Moreover, the record does not show that the union was justified in refusing to approve the side letter and in advising the employee not to sign it. Although the union representative testified that the employee "would be signing away all of her rights," she failed to specify those rights to which she was referring. The record shows that the employee would retain her rate of pay, hours, location, benefits, and contract rights. The union representative also failed to explain how the expectations provision in the side letter, which she apparently viewed as a source of concern, differed from the typical management right to establish performance expectations and evaluate whether a worker has met those expectations, or from the employee's existing contract rights. The union representative referenced the employer's refusal to negotiate the terms of the side letter. However, the record shows that the employer modified two provisions of the draft side letter at the employee/union's request. Finally, the union represented that it was waiting for additional information from the employer regarding those accommodations made for the employee in her CNA position. However, in information provided to the union in the May 2 meeting, and in the letter provided to the employee and the union as part of the May 12 meeting (exhibit #1), the employer made it clear that, in its view, there was no possible accommodation of the employee's lifting restriction in her CNA position. It should have been clear to the union as a result that this was the employer's answer and no further information would be forthcoming.

Finally, the actions of the union would not be attributable to the employer.

The employee's quitting was not with good cause attributable to the employer or for any other qualifying exception.

 


ROBERT GLASER, COMMISSIONER (Dissenting)

I respectfully dissent from the majority decision.

In my opinion, the employee was not provided a meaningful choice here. The only way she could remain employed was to accept appointment to a position for which she had already demonstrated a lack of ability. As a result, the separation should be treated as a discharge, but not for misconduct or any other disqualifying reason.

/s/ Robert Glaser, Commissioner



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