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


ANTOINETTE M COLE, Employe

LINDBERG DIVISION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002540WT


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:

1. In line 2 of paragraph 3 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW, "workforce" is deleted and "office workforce" is substituted therefor.

2. At the end of paragraph 3 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW, the following is added:

"Finally, the employe's supervisor advised the employe to take the termination package."

3. In line 5 of paragraph 4 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW, "on" is deleted and "no" is substituted therefor.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified. This matter is remanded to the department to investigate the employe's availability for work in her labor market, if not otherwise resolved.

Dated and mailed November 22, 1999
coleant.umd : 105 : 1  VL 1005

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission agrees with the Department of Workforce Development that the facts originally listed in the appeal tribunal decision would not support a finding of good cause attributable to the employer for the employe's quit of employment. The department fails to acknowledge a critical fact in its petition for review, however, the supervisor's advice to the employe to take the termination package. This factor, coupled with the remaining factors, establishes good cause for the employe's quit. The fault an employer must be responsible for, in these cases, does not necessarily mean wrongdoing. Rather, it means only that the employer is responsible for the circumstances that result in the employe's quit. The employer's actions in this case met that standard.

The dissent does not believe the practice of offering early retirement packages to employes reaches the standard of good cause attributable to the employer (for a quit). The exact same proposition was stated in the paragraph immediately above. The dissent then speculates as to how the employe's supervisor phrased his remark to the employe that she should take the retirement package offered by the employer. Rather than make up the phrasing the supervisor used, the majority believes it preferable to take the evidence as testified: the supervisor advised the employe to take the package. Finally, the dissent argues from the hindsight of the actual number of individuals in the employe's department who took the early retirement offer of the employer. The separation occurred when the employe accepted the offer, however; how many individuals from the employe's department were going to take the offer was unknown at that point and therefore is not a proper focus of analysis.

cc: LINDBERG DIV SPX
GENERAL SIGNAL CORP

GREGORY FRIGO DIRECTOR
BUREAU OF LEGAL AFFAIRS

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I do not believe that the practice of offering early retirement packages to employes where the employe can voluntarily decide to take the package or not reaches the standard of good cause attributable to the employer to quit. The better the retirement package, the more likely the employe will retire or quit.

The majority was influenced by the fact that the employe's supervisor, who left the employer, advised the employe to take the package. I do not see this situation as a coercive quit where the employe really was forced into quitting. The supervisor's comment may have been as simple as telling the employe that the retirement package was a good deal. The employe did not say that the supervisor said, "you won't have a job so you better take the retirement package." There were six or seven people in the employe's department. A 30% reduction would not have required more than a 2.1 position reduction in the employe's area. The employe testified that "In regard to how many were laid off, I left and my immediate supervisor left the company. Two of the application engineers left voluntarily." He also indicated "another lady who did the same work I did. She did not accept retirement and she was not laid off."

Under all these facts, I would reverse and find that the employe quit not within any of the exceptions which would allow for the immediate payment of benefits.


___________________________________
Pamela I. Anderson, Commissioner


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