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WV Supreme Court case addresses union contract, unemployment

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Can a person's unemployment benefits be governed under a collective bargaining agreement if she leaves her job, or are benefits set forth under different standards?

This is one of the questions brought forth in a West Virginia Supreme Court oral argument hearing in a case where a former Verizon Services Corp. employee left her job because she could not get child care after the company switched her shift from day to evening.

According to court documents, Verizon Services offered Loretta K. Epling the choice between two positions. She could take a job as a business consultant or another as a residential consultant.

Epling chose to work in the business consultant because the office was open from 8:30 a.m. to 5 p.m. and it would give her the chance to pick up her children from day care.

When Frontier purchased Verizon, her shift changed. In March 2010, court documents state, her employer told her she would work from noon to 8 p.m. or from 1 p.m. to 9 p.m.

Epling later left her job and filed for unemployment with WorkForce West Virginia. Her request was granted, as the WorkForce deputy concluded she left work voluntarily with good cause involving fault in the part of the employer.

Verizon argued her union signed a collective bargaining agreement and the company also sent her numerous documents informing that her hours could change.

Thus, the company appealed but an administrative law judge affirmed the deputy's decision. Verizon requested a review by the Board of Review.

The board reversed the decision, ruling Epling couldn't receive benefits because she didn't have good cause involving the fault of the employer.

Epling appealed the board's decision to Kanawha County Circuit Court. The lower court ruled that changing her hours "constituted a substantial and material change in the terms or conditions of her employment that was made unilaterally by the employer."

"Because I find that Ms. Epling left her job with good cause involving fault on the part of the employer, I need not address the petitioner's argument that she did not leave her employment voluntarily," Kanawha County Circuit Judge Paul Zakaib's order read.

Verizon appealed to the West Virginia Supreme Court of Appeals.

The company, represented by Mark H. Dellinger, argued Epling should have been disqualified from receiving benefits because of the collective bargaining agreement.

Dellinger also argued that Verizon informed Epling that her hours could change.

"I don't take issue with the circumstances," Dellinger said, referring to Epling's need to take care of her children. "What we're saying is the expectations of this job. She was told when she came to work with Verizon that she was not hired for a particular shift. She was hired to work hours that would vary."

He said the collective bargaining agreement set forth the work hours, which are subject to the needs of the business.

"There is no substantial unilateral change to the terms of conditions of her employment, based on the change of her hours," he said. "Two weeks before she started working, she was informed in writing in multiple documents that she is not guaranteed any special work schedule."

Epling's attorney, Sarah K. Brown, argued in the Jan. 23 oral argument hearing the case isn't about whether Verizon had the authority to change her hours. 

Instead, she said the case is about whether the change in those hours constituted fault on her employer causing Epling to leave her job with good cause.

"She had a reasonable expectation and outline of job duties that she was hired in a business unit. She chose that position because of the child situation. She knew she may be required to participate in training, work weekends and overtime. She didn't know she would work a substantially different shift."

Brown noted that Epling's husband worked night shift as a coal miner and could not pick up the children. She also argued Epling tried but could not get other arrangements for child care and offered to work part-time or in another division.

"Collective bargaining certainly gives the company the right to change hours. … This brings forth the main point that the decision to change hours was not improper under the collective bargaining agreement but the statutory right to unemployment rights is under different standards," she said.

Brown argued that good cause exists when there is a unilateral change and when there are compelling circumstances.