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


ALVIN L LEINTZ, Employe

FORT JAMES OPERATING CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99402693AP


On February 27, 1999, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing for immediate eligibility for unemployment insurance. The employe filed a late request for hearing and, on June 25, 1999, an administrative law judge for the Department of Workforce Development dismissed the employe's request for hearing. The employe filed a timely petition for commission review of the dismissal decision and, by October 6, 1999 order, the commission remanded the matter for hearing on the merits. That hearing was held on October 25, 1999; the matter is again before the commission, and is ready for disposition.

Pursuant to authority granted in Wis. Stat. § 108.09(6)(c), the commission takes up on its own motion the February 27, 1999 initial determination in this case, on the ground of mistake, and issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked almost 40 years for the Fort James Operating Company, and took early retirement when the employer closed its Canal Plant in Menasha. The employe's taking of early retirement was a quit of employment, and the issue is whether an exception to the general quit disqualification of Wis. Stat. § 108.04(7)(a) applies to the quit. The commission concludes that Wis. Stat. § 108.04(7)(am) applies, and so reverses the initial determination in this case.

The employe's taking of the early retirement offer from the employer, followed months of negotiations and meetings between the employe's union and the employer. These negotiations included participation by the Department of Workforce Development personnel. On July 13, 1998, the employe completed the Canal Plant closure option selection form, which gave him two options. The employe could terminate his employment, or he could use his seniority to "bump" another position in the bargaining unit for which he was qualified. The employe also testified that, had he "bumped," he would have displaced a co-worker with less seniority at whatever location the employe went to. The employe continued working for the employer, at the employer's request, until December 19, 1998 (week 51), at which time the Canal Plant closed and the employe's employment ended.

Generally, when an employe quits his or her employment, the employe is ineligible for unemployment insurance until the employe meets the requalification requirements of Wis. Stat. § 108.04(7)(a). Several exceptions allow an employe to quit employment and still be immediately eligible for unemployment insurance, if the employe is otherwise qualified. The relevant exception in this case is Wis. Stat. § 108.04(7)(am), which governs the situation where "the suspension or termination of the claimant's work was in lieu of a suspension or termination by the employer of another employe's work." Based upon the employe's testimony and the wording of the Canal Plant closure option selection form, the employe's circumstance meets this exception. The commission therefore finds that, in week 51 of 1998, the employe voluntarily terminated employment with the employer in lieu of the employer suspending or terminating a co-worker's job, within the meaning of Wis. Stat. § 108.04(7)(am).

DECISION

The initial determination is reversed. Accordingly, the employe is eligible for unemployment insurance beginning in week 51 of 1998, if he is otherwise qualified.

Dated and mailed December 30, 1999
leintal.urr : 105 : 6 VL 1007.01 VL 1047.04 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge in this case. The commission took this case on its own motion, and reversed the initial determination. There thus was no basis for conferral with the administrative law judge.

PAMELA I. ANDERSON, COMMISSIONER, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I would have disposed of this case because the employe's appeal was late and not for a reason beyond his control. The decision gave him his appeal rights and he knew he had been denied benefits but he did not appeal until he found that co- workers were receiving benefits. I would agree with the administrative law judge's dismissal.

______________________________________
Pamela I. Anderson, Commissioner


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]