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


DANIEL W ROEDL, Employe

JOHN DEERE HORICON WORKS, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96004769MD


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 employe is ineligible for benefits beginning in week 3 of 1996, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $3288 to the Unemployment Reserve Fund.

Dated and mailed: September 5, 1997
roedlda.usd : 110 : VL 1007

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

This case presents the question of whether the employe, Daniel W. Roedl, voluntarily terminated his employment with John Deere Horicon Works, within the meaning of Wis. Stat. § 108.04(7), or was instead discharged, within the meaning of Wis. Stat. § 108.04(5).

The employe stopped working for John Deere following a proceeding held on August 14, 1996 before an ALJ of the Wisconsin Equal Rights Division arising out of a discrimination complaint filed by his wife against John Deere, which also employed her. It is not disputed that at that time, the employe, his wife, and John Deere were all considering entering into an agreement which would involve the voluntary resignation of the employe and his wife in exchange for certain consideration on the part of John Deere.

In his brief, the employe asserts that the issue here is "whether [he] entered into a valid agreement to quit when material terms of the agreement to quit, including the tax treatment of the settlement, the indemnification clause and the confidentiality clause were not resolved and the settlement documents demonstrate there is no valid agreement until the document is signed" (Employe's Brief, p. 1).

This statement of the issues makes assumptions about the facts which, as will appear below, the commission does not join in. More significant, however, this statement of the issues proceeds as though this were simply an action in contract, such that if the contract between the employe and the employer has one meaning there is one result and if it has another meaning there is another result. However, a claimant's eligibility for unemployment benefits is not to be determined simply by looking at private agreements negotiated between the claimant and his employer. See, Roberts v. Industrial Commission, 2 Wis. 2d 399, 86 N.W.2d 406 (1957). Rather, it should depend on the application of the provisions of the Unemployment Compensation Act to all relevant facts, including such things as the actions and intentions of the employe.

Thus, for example, it is not correct to say that whether there has been a voluntary quitting turns on whether there is a "valid agreement" to quit, since quitting can be found based on an employe's unilateral actions even absent an agreement with the employer. The established test for whether an employe leaves employment voluntarily, is whether the employe "shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct, inconsistent with the continuation of the employee-employer relationship." Nottelson v. ILHR Department, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980). An employe should be found to have terminated his own employment within the meaning of Wis. Stat. § 108.04(7), when the employe shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employer/employe relationship. Dentici v. Industrial Comm., 264 Wis. 181, 186, 58 N.W.2d 717 (1953), Fish & White Equipment Sales & Service, 64 Wis. 2d 737, 745, 221 N.W.2d 864 (1974), Hanmer v. DILHR, 92 Wis. 2d 90, 94, 284 N.W.2d 587 (1979).

While a bilateral agreement with the employer is thus not necessary to a finding that an employe has quit, it may be sufficient to support such a finding. When an employe enters into an agreement with his employer to voluntarily resign in exchange for certain consideration on the part of the employer, there may be a disqualifying quit for unemployment compensation purposes, even where the agreement to resign arises in the context of a complaint of discrimination filed by the employe, and even where the employe had initially intended to keep working for the employer and agreed to resign in response to a proposal by the employer made as part of negotiation over the settlement of that complaint. Jose R. Velazquez v. LIRC and Cellular One, Case No. 97-CV-0376 (Wis. Cir. Ct., Dane Co., July 14, 1997). What is significant in such cases, is that the employe who quits had the right to return to work if he or she so chose but instead voluntarily accepted terms that included resignation.

Thus, both the employe's words -- i.e., his agreement with John Deere -- and his actions and conduct, are important to the question of whether he quit his job such that disqualification is the appropriate result.

The employe has argued that he never agreed to resign, in that what occurred on August 14, 1996 was merely a matter of the employer describing a "proposal" for such an agreement, which the employe subsequently rejected when he found the written details to be unsatisfactory. He has also argued that he did not enter into any sort of agreement through counsel at that time because (he claims) he was not being represented by the attorney (Sally Piefer) who was representing his wife in her negotiations with John Deere. He also argues that no agreement was entered into on August 14, 1996 because it was understood that there would only be an agreement when it was entered into in writing, and he never signed such an agreement.

Based on its review of the record, the commission agrees with the analysis of the Appeal Tribunal. Specifically, the commission finds that the employe was being represented by Attorney Piefer on August 14, 1996, that through such counsel the employe actually entered into an agreement which was full, final and complete when made on the record on that date, and that the contemplated subsequent execution of written documents was merely a matter of the performance of that agreement. The commission also finds that the employe did not only enter into this agreement to quit his job, but then acted consistently with that agreement, by ceasing to come in to work, accepting money tendered in consideration for his agreement to quit, and returning employer property and removing his personal property from the employer's premises. Finally, the commission finds that the subsequent dispute concerning the execution of certain documents concerns only an issue of whether the agreement is being fully complied with by both parties, and does not undo the fact that the agreement was entered into and exists.

The employe was represented by Attorney Piefer -- The commission agrees with the Appeal Tribunal, that Attorney Piefer acted as the employe's attorney in respect to the negotiations which led to the agreement memorialized on the record at the August 14, 1996 hearing before ALJ DeLaO.

For one thing, Attorney Scrivner, describing the terms of the settlement agreement, expressly stated that the settlement involved Mr. Roedl (T. p. 4), and he expressly indicated the elements of the settlement which related directly to Mr. Roedl, including the fact that those elements included Mr. Roedl leaving the employment of John Deere (T. p. 7), and it was Ms. Piefer who spoke in response to his statements by agreeing that those were the terms (T. p. 10). Also, evidencing the fact that the negotiations had been with Attorney Piefer acting on behalf of the employe, Attorney Scrivner had recited in the course of his description of the settlement terms that:

"The company has indicated to Ms. Piefer that for Mr. Roedl, he will remain on the payroll of the company through the end of this workweek . . . " (T. p. 8)

The employe himself acknowledged, that he understood that Attorney Piefer's role in the negotiations which occurred on August 14, 10996 was as a "go-between between myself and the company". He acknowledged as well, that during the negotiations that day Attorney Piefer talked to the employe about the marketability of his skills and the desirability of his settling the case. It is undisputed that the terms of the settlement agreement included the payment of $9,000 to Mr. Roedl in consideration of his entry into a compromise agreement involving a workers compensation claim, and that 20% of that $9,000, or $1,800 would be paid to Attorney Piefer's law firm, Shindell & Shindell. Attorney Piefer could have had no entitlement to any part of sums given to the employe in connection with a workers compensation claim except as his attorney. Finally, Attorney Piefer herself directly acknowledged and testified that she and the firm of Shindell and Shindell were representing the employe in connection with his dealings with his employer from July through October 1996, and she specifically testified that she was representing the employe in the negotiations which occurred on August 14, 1996.

For these reasons, the commission believes that the argument that the employe was not being represented by Attorney Piefer in this matter is not merely unpersuasive, but is entirely without any colorable merit.

Through counsel, the employe entered into a complete agreement on August 14, 1996 -- The employe argues that there was no agreement because certain papers were never signed, and that all that occurred in the proceedings before ALJ DeLaO was that a "proposal" was described, which the employe later rejected. The commission disagrees.

At the beginning of the proceedings, ALJ DeLaO indicated that it was her understanding that the parties "have now reached a settlement" (T. p. 3); no one disputed or corrected her understanding. On the contrary, Attorney Scrivner responded by referring to "the settlement understanding that the parties have reached to resolve all issues between them" (T. p. 4), and that characterization was not challenged. Attorney Scrivner also repeatedly referred to what was contemplated to occur in the future as being the "implementation" of the settlement (T. p. 6 lines 9, 19, p. 8 lines 16, 22, p. 10 lines 1, 5), and that characterization was not challenged by Attorney Piefer. The employe conceded in his testimony before the Appeal Tribunal that at the August 14, 1996 proceedings before ALJ DeLaO, he agreed that he would resign in return for certain payments and in return for the settlement of his wife's equal rights case. He conceded that the agreement placed on the record was an accurate representation of what he agreed to on that date.

The commission has consistently held, in cases arising under the Wisconsin Fair Employment Act, that settlement agreements are final once entered into by all parties on the record, even if they are at that point not yet reduced to writing. See, Gahan v. The Milwaukee and S.E. Wisconsin Dist. Council of Carpenters (LIRC 03/29/96), Pustina v. Fox & Fox, S.C. (LIRC, 04/27/93). The commission is satisfied that agreement in this case was final and complete when entered into on the record before ALJ DeLaO. That agreement obliged the contracting parties to do a number of things in performance of the contract. The subsequent signing of the various documents was simply one of the things that was called for as part of the performance of that contract.

The commission therefore believes that the argument that what occurred on August 14, 1996 was simply a "proposal" which the employe could accept or reject by either signing or not signing the papers that were to be prepared, is not merely unpersuasive, but is entirely without any colorable merit. The employe, represented by counsel, voluntarily entered into an agreement on August 14, 1996 to resign his employment.

Apart from the matter of the agreement, the employe's actions constituted a quitting -- It is undisputed that the employe never went back to work after August 14, 1996. It is also undisputed that he cashed at least one check which was tendered to him by the employer as part of the consideration agreed upon for his previous agreement to quit. In addition, the employe returned certain company property, and removed his personal property from the employer's premises, in compliance with terms of the agreement for him to resign. Even accepting for the sake of argument, that the bilateral contractual agreement for the employe to quit had not been finalized at this point, the employe's unilateral actions in abandoning his job, accepting money understood by him to be given in exchange for his quitting, and returning company property and removing his personal property, were actions inconsistent with the continuation of the employee-employer relationship; they were thus a quitting. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980).

The commission disagrees with the employe's argument, that the subsequent development of a dispute about performance of some elements of the agreement means that the entire agreement was somehow void ab initio. The general outlines of the agreement between the parties were clearly articulated on the record on August 14, 1996. This was a carefully crafted agreement involving numerous separately-accounted-for payments in specific amounts, as well as other undertakings (not the least of which, of course, were the agreements that the employe and his wife would both resign). There was never any ambiguity or disagreement about the vast majority of the terms. The disputes which were eventually raised by the employe involved a relatively small number of areas in which the original agreement was silent. The overall impact of the detail "filled in" by the employer's draft language was hardly significant enough, considering the entire agreement, to justify treating the entire agreement as voided. At most, what happened was that the employer added terms not part of the original agreement. While there may be a dispute about those terms, there was no dispute that the employe's resignation was a term of the agreement. Therefore, the commission concludes, it is appropriate to find that the employe voluntarily quit his employment for purposes of determining Unemployment Compensation eligibility.

The employe has rested his argument entirely on the theory that he did not quit, and he has not argued that in the event it is found he quit it should be held that he had good cause to do so. The commission is satisfied that nothing in the record establishes that the employe had good cause to quit. The mere fact that the agreement to quit arose in connection with allegations of discrimination against the employe's wife, which are unproven on this record, does not establish such good cause. See, Velazquez v. LIRC and Cellular One, supra. Therefore, the employe's quitting is disqualifying.

cc:
Attorney Marilyn Townsend
Attorney John J. Kalter


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