Wis.LIRC WC Decision: Warren, Lenny - September 25, 2006 - ND � 5.23 - 85 percent rule - employer's letter not a good faith offer of re-employment - did not offer specific job, employer aware employee was far behind in union dues he'd have to pay to come back - anyway, employee's response, through his attorney, prompt and reasonable, was not a refusal

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

LENNY J WARREN, Applicant

JAMES LUTERBACH CONSTRUCTION, Employer

AMCOMP ASSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-012417

An administrative law judge (ALJ) for the Worker's Compensation Division 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 order in that decision as its own.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed September 25, 2006
warrele . wsd : 185 : 2 ND � 5.23

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In their petition, respondents assert that the applicant refused a good faith offer of reemployment by: (1) voluntarily allowing his union membership to lapse; and (2) failing to reactivate his union membership after receiving the certified letter of June 3, 2005. The employer further asserts that the certified letter contained a good faith offer of reemployment. The commission rejects all these assertions.

In September of 2004, the applicant's union sent the employer notification of the applicant's arrearage in dues, and asked the employer to terminate his employment if he did not pay the back dues by October 4, 2004. The employer's office manager wrote on this notice what is inferred to be an expression of hope that the applicant does not pay his back dues, so that he can eventually be replaced. The employer did allow the applicant to return to work without paying his dues on October 7, 2004, and then laid him off on December 17, 2004. However, it did not bring him back after approximately two months, which was the normal length of the applicant's winter layoff. On March 7, 2005, the applicant's union sent the employer a fax notifying it of the fact that the union had dropped the applicant's union membership due to nonpayment of his dues.

On June 3, 2005, the employer sent the applicant a certified letter alleging that immediate employment was available to him. By that time, the employer would have known that the applicant would have had to pay a sizeable amount in union fees and dues to obtain reinstatement. The letter did not offer a specific job. The applicant's attorney promptly replied with a letter indicating that the applicant was interested in returning to work provided his physical restrictions were respected, and requesting a specific date, time, and location for the applicant to report to work. The employer responded with a letter indicating that since the applicant had failed to reinstate himself with the union, he was considered to have refused the alleged offer of employment made on June 3, 2005.

As noted by the administrative law judge, the employer provided no specifics for the alleged job offer of June 3, 2005. The applicant had good reason to question the bona fides of that offer, given the fact that his physical restrictions prevented him from performing his regular job, the fact that during his previous return to restricted work with the employer he had been assigned make-work projects, and the fact that the employer had not called him back to work for almost six months. In addition, it is inferred that the employer knew the applicant would be reluctant to pay the substantial union fees and dues needed for reinstatement (approximately $800.00); and that given his circumstances, the applicant might question whether the employer could actually provide him with a permanent job. The employer's response letter to the applicant's attorney implies that the job allegedly available on June 3, 2005, became unavailable because the applicant failed to immediately reinstate his union membership. However, the letter again failed to identify a specific job, and there has never been any explanation given for why this alleged job allegedly became unavailable so quickly. The credible inference is that there never was a good faith offer of employment.

Even were the employer's letter found to have constituted a good faith offer of employment, the applicant did not refuse the offer. According to the employer, he failed to act quickly enough in obtaining reinstatement in his union to take advantage of the offer. However, after approximately six months of layoff from the employer, and considering the other circumstances previously mentioned, the applicant acted reasonably in consulting his attorney. The attorney's response was prompt, reasonable, and indicated the applicant was ready to report on a date and time to be specified by the employer. The applicant's testimony makes it clear that he intended to pay the necessary union fees and dues once he could be reasonably certain that an actual job that he could perform was available with the employer. The employer failed to demonstrate that it acted reasonably because it failed to demonstrate that a specific job ever was available, or why that alleged job so quickly became unavailable.

cc:
Attorney Paul Erspamer
Attorney Roland Cafaro

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