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

STEVEN G FISHER, Employee

BLACK & DECKER U S INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01000407JV


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 45 of 2000, if he is otherwise qualified.

Dated and mailed December 11, 2001
fishest . usd : 132 : 8   MC 629  VL 1007.15 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged from his employment but not for misconduct connected with work. The commission notes that in the process of reviewing this case it did speak with the administrative law judge regarding his impressions of credibility and demeanor. After reviewing the record and consulting with the administrative law judge regarding credibility, the commission affirms the appeal tribunal decision.

The most convincing piece of evidence in this record regarding the employee's motive for signing the resignation document was the statement that "rather than face termination from Black & Decker this has been given to me to save face and forego any bad differences, and current emotional stress related to my job." The employee testified that one reason that he did not come forward and explain why he signed the resignation form was because his supervisor had threatened him. While the employer does not credit the employee's testimony, and in questions the type of threat that was made, the administrative law judge found the employee's testimony in this regard to be credible. The employer could have questioned the employee to explain the specific threat made to him that dissuaded him from informing human resources of the circumstances surrounding his "resignation."

Simply because there is no reported case finding that an employee who submitted a resignation was discharged does not prevent such finding. The critical issue is whether the employer was going to permit the employee to continue in his employment. Based on the employee's testimony he was given a choice only as to the characterization of the separation. Wis. Stat. § 108.04(7)(a) applies to situations where it is the employee's decision to end the employment relationship. The logic is inescapable that when an employee is only given the chance of how to characterize the separation, but not whether there will be a separation, it was not the employee's decision to become unemployed. For these reasons, and the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: 
Black & Decker (US) Inc.
Attorney William Gergen


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uploaded 2001/12/17