BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
UNITED LEGAL WORKERS
LEGAL ACTION OF WISCONSIN, INC.
(Linda Orton Grievance)
Ms. Connie E. R. Deer, Coordinator, United Legal Workers,
c/o Legal Action of Wisconsin, Inc., 31 South Mills Street, P.O. Box 259686, Madison,
Wisconsin 53725-9686, for the Union.
Michael, Best & Friedrich, Attorneys at Law, by Attorney Jose A.
Olivieri, 100 East Wisconsin Avenue, Milwaukee, Wisconsin 53202-4108, for the
Pursuant to a joint request by United Legal Workers, herein the "Union" or "ULW,"
Legal Action of Wisconsin, Inc., herein the "Employer" or "LAW," Dennis P. McGilligan
appointed Arbitrator by the Wisconsin Employment Relations Commission on March 9,
pursuant to the procedure contained in the grievance-arbitration provisions of the parties'
bargaining agreement, to hear and decide a dispute as specified below. The hearing was held
Madison, Wisconsin, on June 21, 1999. The hearing was transcribed, and the parties
briefing schedule on August 31, 1999.
After considering the entire record, I issue the following decision and Award.
The Union frames the issue as follows:
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Did the Employer, LAW, violate the collective bargaining
agreement when it failed to issue
a recall notice to former employe, Linda Orton?
The Employer frames the issue in the
Whether the Grievant, having resigned
from her employment after receiving a notice of
proposed layoff, accrued recall rights under the collective bargaining agreement?
Based on the entire record, the Arbitrator
frames the issues as follows:
1. Did the Employer's action
constitute a constructive layoff of the Grievant?
2. If so, did the Employer violate
the collective bargaining agreement when it failed to issue
a recall notice to the Grievant?
3. If the answer to the second issue
is affirmative, what is the proper remedy?
The Employer provides legal services to the poor in the State of Wisconsin where it
offices in Madison, Milwaukee and Kenosha.
In 1995, federal budget allocations for the Legal Services Corporation were
which in turn led to a "difficult budgetary" situation for the Employer. The Employer used
carry-over funds immediately after the cut to forestall a budgetary crisis but projected that if
positions were not reduced, particularly in the Madison office, a deficit would occur. In
the Employer decided in fall, 1996, some staff positions, whether through attrition or layoff,
have to be eliminated.
By memorandum dated February 14, 1996, John F. Ebbott, Executive Director
Employer, informed all staff of the decision by the Board of Directors of the Employer to
budget cuts through staff reduction rather than through reducing employees to part-time
Regarding the staff reduction approach, Ebbott noted:
It should be emphasized that the staff reduction approach may also
include attrition where
possible. Layoff decisions will be made giving serious consideration to any attrition which
occurred. Whether attrition averts layoffs depends on the client service needs of the office.
example, if, through attrition, half the lawyers left an office, we may have to hire some new
and would still have to lay off paralegals and/or secretaries. Thus, while attrition may
extent of layoffs, other factors must also be considered.
Therefore, as staff reduction actions will
have to be taken in or about mid-November for
Madison, layoff notices will be sent in or about mid-March.
By letters dated March 14, 1996, the Employer gave five employes notice that they
laid off effective November 15, 1996: the Grievant (Linda Orton), Jack Longert,
Pearsall, Patricia Fox-Caron and Lisa Hutter. The letters stated, in relevant part:
This letter is your notice of layoff under the collective bargaining
agreement between Legal
Action and the ULW. We are sending it at this time to provide you with as much notice and
opportunity to make other plans as possible. As you know, this layoff has been caused by
Congressional funding cuts. It is possible that attrition may reduce the number of layoffs
are required to make but we cannot guarantee that attrition will affect your layoff status.
I hope that this notice period of eight
months provides you with the opportunity to adjust to this
Ultimately, only two of the five employes were actually laid
Fox-Caron and Longert.
Both of them were subsequently recalled.
Although the Employer initially told Carter Pearsall that she would be laid off, it
rescinded her layoff notice by letter dated September 4, 1996, and never laid her off.
In addition, by memorandum dated October 3, 1996, Hutter informed the
I have just been notified today, that I am to begin working 20 to
30 hours per week more at my
current afternoon, part-time job starting tomorrow at 10:00 am. Due to the fact that I
really have no
option other than to accept the hours that I am given, or they will have to hire someone else
extra hours. And because I know my job with Legal Action will end soon, I feel obligated
to do what
is right for myself and my family.
I am truly sorry for not being able to give
more of a notice that I am leaving, but under the
circumstances, I have no other choice.
Finally, by memorandum dated October 21, 1996, the
informed the Employer as
This memo is to confirm that my last full-time work day with
Legal Action of Wisconsin, Inc. will
be November 1, 1996, due to my acceptance of a position with Balisle and Roberson.
I have offered part-time services and the
dates that I would be available from Balisle and
Roberson would be November 8th, November 14th and
November 15th, with the possibility of some
hours on November 7th. I need to let their office manager know what days
I will be at LAW. I would
appreciate your letting me know by this Wednesday.
I await your response.
By letter dated October 30, 1996, the
This is to confirm the memorandum from
Hal Menendez to you dated October 23, 1996. Your
resignation is accepted effective at the end of the business day on November 1, 1996. Legal
declines your offer to work on a part-time temporary basis after November 1, 1996. Instead,
stated in Hal's memo, you should complete all work, including the transfer of all files, by
I am pleased that you have secured
employment at a family law firm, and wish you complete
success in your new job.
. . .
But for her proposed layoff, the Grievant would not have quit her employment on
1, 1996, to find employment as a legal secretary.
On June 16, 1998, the Grievant filed a grievance:
The undersigned hereby request, grieve and
otherwise seek the following action from the
management/employer: that the management/employer promptly issue a recall-from-layoff
Linda Orton at 267 Franklin St., Evansville, WI 53536 with a copy provided to the
ULW for the
position described in the job announcement dated May 15, 1998 and entitled Volunteer
Project Coordinator/Administrative Law Paralegal, Madison Area Office.
The management/employer failed to issue
such letter prior to its publication or posting of the job
description to the general public and is contrary to the provisions of the ULW contract under
IX, Section 7 and 8 of the ULW paralegal and secretaries contract dated December 13, 1994
Article IX, Section 6 and/or 7 of the ULW paralegal and secretaries contract dated May 8,
Before her resignation, the Grievant had been an employe of LAW since July, 1978.
the position of administrative legal secretary when she started working for the Employer in
Janesville office. She transferred to Madison in 1983, where she became the Volunteer
Project Secretary until 1989. In February, 1989, she became the Family Law Paralegal for
Employer. She has never held the position of Volunteer Lawyers Project Paralegal with the
By letter dated July 14, 1998, the Employer denied the grievance in relevant part as
2. Ms. Orton resigned from her employment and said
resignation was accepted by Legal
Action. Therefore, Ms. Orton does not have any recall rights.
Next, the Legal Action Personnel Committee denied the grievance at Step Three as
After hearing presentations by both sides and meeting in
session, the Legal Action
Personnel Committee determined that the question is whether the Collective Bargaining
was violated by management by not sending a recall letter to Linda Orton. The committee
because Linda Orton had resigned, therefore, she was not entitled to a recall letter. The
alleging a violation of a Collective Bargaining Agreement is hereby denied.
Thereafter, the grievance proceeded to arbitration as noted above.
. . .
SECTION 5 Authority of Arbitrator
The parties agree that the arbitrator must
interpret this Agreement and apply it to the particular
case presented to him/her but shall, however, have no authority to add to, subtract from, or
way modify the terms of this Agreement. Any questions of arbitrability of any issue shall be
determined by the arbitrator. In cases involving suspension, termination or emergency
arbitrator shall have the authority to increase or reduce any disciplinary sanction and restore
modify all or any part of the benefits, including back pay, which have been the subject of the
The decision of the arbitrator shall be final
and binding on the parties.
. . .
Job Vacancies, Work Force Reduction and Seniority
. . .
SECTION 6 Recall from Layoff
Employees shall be recalled from layoff by
certified mail sent to the last known address of the
employee as listed in the files of the Employer. Any employee who fails to report for work
ten (10) working days of the post-marked date a recall notice was mailed shall lose all recall
Up to two (2) weeks of additional time shall be allowed for employees to return to work for
employees required to give two (2) weeks' notice to another employer.
SECTION 7 Recall
Employees shall have recall rights for a
period of two (2) years from the date of layoff. Such
employees shall, upon recall, be credited with accrued sick leave unused at the time of
SECTION 8 Notice of
Any regular employee who has completed
his/her probationary period and is laid off due to a
reduction of staff in his classification in accordance with the provisions of this Article shall
sixty (60) calendar days' notice of such layoff, provided funds are available.
. . .
POSITIONS OF THE PARTIES
The Union basically argues that the Grievant was constructively laid off and that she
to be recalled by the Employer. The Union requests that the grievance be sustained and that
Arbitrator order the Employer to re-employ the Grievant and make her whole for any losses
as well as other relief as is just and reasonable.
The Employer basically argues that pursuant to the collective bargaining agreement
employe must be laid off in order to retain recall rights. The Employer maintains that since
Grievant resigned her employment at LAW prior to the layoff date, she was not laid off and
entitled to recall. The Employer requests that the grievance be denied and the matter be
The Union argues that the Grievant was constructively laid off while the Employer
that she quit her employment with LAW.
The record supports the Union's position.
It is undisputed that by letter dated March 14, 1996, the Employer gave five
including the Grievant, notice that they would be laid off effective November 15,
1996. The record
also indicates that by memo dated October 21, 1996, the Grievant informed the
Employer that her
last full-time work day with LAW "will be November 1, 1996, due to my acceptance of a
with Balisle and Roberson."
The Arbitrator agrees with the Employer that the memo the Grievant "presented in
resign" makes no mention of the reason for her resignation. However, the Grievant testified,
unrebutted by the Employer, that but for the proposed layoff she would have stayed at LAW.
Such a conclusion is supported by Arbitrator Amedeo Greco who found that "But for
proposed layoffs, neither Orton nor Hutter would have quit." Legal Action of Wisconsin,
Case 6, No. 54460, A-5521, p. 3 (July 22, 1997). The Arbitrator agrees with the
contention that the aforesaid case is not "binding" herein. However, it is relevant to a
the Grievant did not voluntarily quit but instead was constructively laid off.
The Employer argues contrary to the above that the motivation for the Grievant's quit
not turn it into a layoff. In support thereof, the Employer cites several arbitration awards for
proposition that employes "who jump the gun and leave employment before termination on a
certain given by the employer have repeatedly been found to have quit."
The cases the Employer cites are distinguishable from the instant dispute.
In Kennewick Irrigation Dist., 93-1 ARB Section 3022 (Boedecker, 1992), the
Employer states an employe who voluntarily quit his job when his position was eliminated
recall rights. However, in Kennewick, unlike the instant dispute, the employe was given an
opportunity to continue working with the employer in a different capacity which the employe
declined. The employe also made two statements that he would never work for the employer
The employer further gave the employe an opportunity in writing to repudiate that sentiment
the employe never responded. Based on the employe's aforesaid specific behavior which
his clear intent not to work for the employer again, the
arbitrator found that the employer could reasonably conclude that the employe
voluntarily quit his
employment when his job was eliminated and waived his right to recall. The record
a finding that the Grievant did not voluntarily quit her employment with LAW or waive her
In General Telephone Co., 86 LA 726 (Craver, 1985), according to the Employer, an
employe who opted for early retirement rather than loss of income while on layoff waived
rights. However, in General Telephone, unlike the present case, the arbitrator construed the
specific facts of that case to establish a voluntary retirement which severed any right to
arbitrator reached this conclusion based on the fact that while on layoff receiving continuance
benefits the employe, afraid of an earnings gap when those payments were exhausted, elected
retirement in face of the eminent shutdown of the facility where she worked. The Company
specifically told the employe that if she accepted early retirement she effectively "resigned"
Company thus forfeiting her seniority and recall rights. General Telephone Co., supra, p.
The arbitrator stated: "One simply does not think of a retiree as a person who can
anticipate any future employment opportunities with his or her previous firm." General
Co., supra, p. 730. As pointed out by the Union, retirement is not an issue in this case and
are not otherwise transferable to the Grievant's case.
In Monty Cleaners, 9 LA 602 (Myers, 1947), the Employer states the arbitrator
employe who left his job after being told that there was not enough work was not laid off.
the arbitrator's decision was based on a different set of facts than the instant dispute. In
Cleaners the arbitrator decided that while it may have been true that the employe would not
left except for the employer's advice, he nevertheless had the protection of the equal
work clause in the agreement if he preferred to remain. The decision keyed on the fact that
employe could have remained employed at the company; he passed up that opportunity. In
words, he could have stayed with the employer by "requesting a share of the work made
the retail store." Failing that, the arbitrator concluded that the employe "left of his own free
and denied his request for vacation pay. Monty Cleaners, supra, p. 605.
Again, as pointed out by the Union, the Grievant did not have the option to remain
at LAW. She tried by requesting part-time work, but her request was denied. In addition,
above, the Grievant did not leave of her own free will. She was forced to find employment
while facing eminent layoff, in order to support her family. (Tr. at 17-18)
Finally, in Pillsbury Co., 100 LA 436 (Stallworth, 1993) the Employer states the
arbitrator found where a contract provides severance pay for employes laid off due to plant
employes who leave before shutdown date are not eligible for severance even if they left to
other employment in light of the impending shutdown. In said case, the arbitrator denied
pay to employes who resigned after the company announced that it
would be closing its grocery line, despite a contention by the Union that the grievants'
severance was triggered by the aforesaid announcement. However, unlike the present case,
said decision in part on express contract language which provided that employes are not
severance pay if they resign or are terminated for just cause. Also, unlike the instant
dispute, he based
his decision on bargaining history which indicated that the employer only agreed to provide
severance pay in a contract which went into effect after the date of the filing of the
record simply indicates that there were no similar negotiations here and the parties'
similar relevant definitions.
The Employer also argues the fact that the Grievant received a notice of
intended layoff does
not mean that she would have ultimately been laid off. (Emphasis in original) The
However, this does not change the fact that but for her proposed layoff, the Grievant would
quit her employment with LAW.
Based on all of the above, and the entire record, the Arbitrator finds that the answer
first issue as framed by the undersigned is YES, the Employer's action constituted a
layoff of the Grievant.
The next question is whether the Employer violated the collective bargaining
it failed to issue a recall notice to the Grievant. The Union argues for such a violation while
Employer takes the opposite position.
The Union cites several arbitration awards and other authorities for the proposition
Arbitrator should require the Employer to "establish good or just cause for its actions or
(sic) as to its failure to recall the employee, Linda Orton." For the reasons discussed below,
The materials relied upon by the Union in support of the aforesaid position all
discharge or termination as the nature of the dispute and, therefore, are not applicable to the
dispute. For example, in Atlantic Southeast Airlines, 102 LA 656, 660 (Feigenbaum, 1994),
the arbitrator found that the refusal of the airline to allow a flight attendant to withdraw her
resignation because her job offer from another airline fell through was a constructive
violation of the contractual just cause standard. (Emphasis added) In Regents of the
of Michigan, 90-2 ARB Section 8529 (Sugarman, 1990), the arbitrator found that the
notice to quit submitted by the employe was without effect since the employe was mentally
stress and unable to understand the import of his resignation. The arbitrator set aside the
so that the employe could apply for long-term disability benefits provided by the employer to
employes. In City of Youngstown, Ohio, 91-1 ARB Section 8287 (Gibson, 1990), the
the employer wrongly constructively discharged two employes who signed
a pre-typed registration
form instead of being fired. (Emphasis added) The arbitrator held that the resignations were
voluntarily made and returned the employes to work. Finally, in Hickory Vinyl Corp., 105
576 (Hayford, 1995), the arbitrator found that an employe's action of leaving work early
permission did not constitute a voluntary resignation and, thus, the employer did not have
to discharge said employe, where he waited for the relief man, and management did
not confront him
with suspicion that he was under the influence of alcohol. (Emphasis added)
Likewise, Elkouri and Elkouri, How Arbitration Works,
4th Edition, pages 655-656 (1985)
addresses "Discharge Versus Resignation." And Remedies in Arbitration, Hill
and Sinicropi, pages
41-42 (1981) reviews the standard of "just cause" in the context of discipline and discharge
Unlike the above cited authorities, the instant dispute is not about challenging a
termination; it is about layoff and recall. The grievance on its face states regarding the
grieved or sought from the employer: that LAW "promptly issue a recall-from-layoff letter
Orton . . . for the position described in the job announcement dated May 15, 1998 and
Volunteer Lawyers Project Coordinator/Administrative Law Paralegal, Madison Area
The management/employer failed to issue such letter prior to its
publication or posting of the job
description to the general public and is contrary to the provisions of the ULW contract under
IX, Section 7 and 8 of the ULW paralegal and secretaries contract dated December
13, 1994 and
Article IX, Section 6 and/or 7 of the ULW paralegal and secretaries contract
dated May 8, 1997.
All of the above cited contract provisions deal with layoff and recall rights.
In addition, the record is undisputed that the Grievant did not challenge the
at the time she received notice of layoff and involuntarily resigned from her employment at
November 1, 1996. Instead, she seeks to enforce her recall rights as stated in the aforesaid
which was filed on June 16, 1998.
Based on all of the above, the Arbitrator will not apply a just cause standard in
Employer's failure to recall the Grievant to a paralegal position in May, 1998. Instead, the
will look to the parties' agreement, particularly to the sections dealing with recall rights, to
the Grievant's rights herein.
Article IX, Section 7 provides that employes "shall have recall rights for a period of
years from the date of layoff." Article IX, Section 6 states that employes "shall be recalled
layoff by certified mail sent to the last known address of the employee as listed in the files of
Employer." As noted above, the Grievant was constructively laid off by the Employer. The
is undisputed that the Grievant was not afforded recall rights or recalled from layoff as
the aforesaid contractual provisions. The Grievant previously worked for the Employer as a
paralegal; the same type of position for which the Grievant is asserting her recall rights. The
Employer offered no persuasive evidence that the Grievant is not qualified for the disputed
herein. Based on same, the Arbitrator finds that the Employer violated Article IX, Sections
6 and 7
of the parties' collective bargaining agreement by its failure to recall the Grievant to the
Lawyers Project Coordinator/ Administrative Law Paralegal, Madison Area Office in May of
The Employer argues, however, that a finding on behalf of the Grievant would add a
to the agreement which states: "upon receipt of a notice of proposed layoff an employee
employment with LAW before the scheduled date of layoff and retain recall rights." The
maintains that such an addition would require that the Arbitrator add to or modify the
contrary to Article VIII, Section 5 of the agreement which provides that an arbitrator shall
authority to add to, subtract from, or in any way modify the terms of this
The Arbitrator disagrees. There is nothing in the agreement which restricts the
authority to find, based on the instant record, that the Employer constructively laid off the
Nor does the agreement expressly state that an employe who is constructively laid off is not
to recall rights. Article IX, Sections 6 and 7 provide laid off employes with recall rights and
procedure for recall from layoff. The Grievant was not afforded her recall rights from
above finding is simply intended to enforce the Grievant's contractual rights to be recalled
layoff. It does not add to, or modify the terms of the parties' collective bargaining
a finding, therefore, would be in compliance with Article VIII, Section 5 of the agreement.
Based on all of the foregoing, and absent any persuasive evidence or argument to the
the Arbitrator finds that the answer to the second issue as framed by the undersigned is YES,
Employer violated the collective bargaining agreement when it failed to issue a recall notice
In reaching the above conclusions, the Arbitrator has addressed the major arguments
parties related to the instant dispute. All other arguments, although not specifically discussed
have been considered in reaching the Arbitrator's decision.
A question remains as to the appropriate remedy.
The Union requests that the grievance be sustained and that the Employer be ordered
a recall notice to the Grievant and re-employ her with compensation for any losses incurred.
Based on all of the foregoing, and the record as a whole, and absent any persuasive
to the contrary, the Arbitrator sustains the grievance and orders the Employer to issue a
to the Grievant and make her whole for all losses she incurred as a result of the Employer's
The grievance is sustained and the Employer is ordered to issue a recall notice to the
for the paralegal position described in the job announcement dated May 15, 1998, and
Volunteer Lawyers Project Coordinator/Administrative Law Paralegal, Madison Area Office.
not necessary to determine whether October 21, 1996 (the date of her resignation
1, 1996 (the effective date of her resignation) or November 15, 1996 (the date two employes
laid off) is the beginning of the Grievant's recall eligibility since the Grievant's
is timely under any date.) If the Grievant reports to work pursuant to Article IX, Section 6,
be made whole for all losses she incurred as a result of the Employer's failure to recall her
Dated at Madison, Wisconsin, this 2nd day of November, 1999.
Dennis P. McGilligan, Arbitrator