Wis.LIRC UC Decision: Kopecky - November 25, 1997 - VL 1007.15 - In anticipation of discharge/before effective date - VL 1007.15 - Discharge, Layoff or Quit? - Leaving in anticipation of discharge, or before effective date - teacher recommended for non-renewal quit without taking advantage of opportunity for nonrenewal hearing before school board, which could have decided no to non-renew - employee did not prove nonrenewal hearing would have been pro forma or futile, or that the employe's non-renewal was a fait accompli or that that board was acting in bad faith

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

LE ROY P KOPECKY, Employe

SCHOOL DISTRICT OF WAUPUN, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97605570WB

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 27 of 1997, and until four weeks have elapsed since the end of the week of quitting and the employe 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.

Dated and mailed: November 25, 1997
kopecle.usd : 105 : 1 VL 1007.15

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge that the employe quit his employment, and that the quit was not for a reason constituting an exception to the disqualification of Wis. Stat. � 108.04 (7)(a). The Wisconsin Supreme Court enunciated the standard for determining whether a hearing before a school board could be bypassed, in Faust v. Ladysmith-Hawkins School Systems, 88 Wis. 2d 525, 534, 535, 277 N.W.2d 303 (1979). For a successful bypass of the hearing, it must be shown that the hearing would have been simply pro forma and that the employer was acting in bad faith. The employe of course has argued that the employer was acting in bad faith, but the record does not establish that allegation with respect to the board as a whole. It is conceded that individual board members had several complaints about the employe's work, but those complaints do not translate into bad faith by the school board as a separate, legal entity. The commission is not unsympathetic to the employe's circumstances, but the employe did not establish that the hearing before the school board would have been a futile gesture or that the employe's non-renewal was a fait accompli. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

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