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

EMORY L OPSAL, Employee

MOUNT HOREB TELEPHONE CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04003045MD


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for over two years as a designer/installer for the employer, a telephone company. His last day of work was May 10, 2004 (week 20).

The issues to be decided are whether the employee quit his employment or was discharged by the employer and whether he is eligible for unemployment benefits given the circumstances surrounding the ending of his employment.

On May 6, 2004, the employee's alarm did not go off and he overslept. He called work about 7:30 a.m. to tell a co-worker that the co-worker needed to cover an 8:00 a.m. appointment for him. He also called the business office to say that he was running late and would be in as soon as he could. About ten minutes later, the new plant manager (who had started working for the employer about 10 days earlier) called the employee and asked him about a program that the employee was to do prior to an installation scheduled for 9:00 a.m. The manager told the employee that he needed to let the manager know if he was not coming in, unless he did not consider the manager his superior. The employee felt that the manager was rude in his manner. After the employee arrived at work, he sensed ill feelings between the manager and himself. He did not respect the way the manager dealt with him over the telephone.

As a result of the discomfort he felt with the new manager, the employee went to his supervisor's office to discuss the matter. He told his supervisor that if things could not be worked out he would have to seek other employment. He stated that he would not report to the new plant manager. The supervisor asked the employee what the employee wanted the supervisor to do. The employee indicated that they needed to sit down and work the matter out. The supervisor asked the employee if he was giving his two weeks notice. The employee replied that he was not. The supervisor asked if he was quitting. The employee replied that he was not. The conversation ended with the employee explaining that he was just telling the supervisor that things needed to be worked out or he would have to find something down the road other than the job he held. They discussed a project that the employee was working on and his supervisor told him to brief a co-worker about it.

On Friday, May 7, 2004, the employee spoke with his supervisor and tried to make amends or "undo" what he had said the day before. He said that he would be able to work with the new plant manager. The employee apologized to the supervisor. The supervisor indicated that the supervisor did not see a problem with sitting down that afternoon and working things out. He asked how the hiring process was going, if there were applicants for his position or if the employer was advertising for his position. He said that he did not want to quit. His supervisor said that he could not think about the situation then but would talk to the employee about it the following Monday.

On May 10, 2004 (week 20), the supervisor told the employee that, after discussion with board members, he was accepting the employee's resignation effective that day. The employee repeated that he did not want to quit, but his supervisor told him that since he was seeking other employment, it was better this way.

The initial issue to be decided is whether the employee quit or was discharged. The second issue is whether the employee is eligible for benefits given the circumstances of the separation.

In Schallock vs. Ind. Comm. and Sprague Elec. Co., (Wis. Cir. Ct., Dane Co., January 28, 1958) the court stated:

. . . It has long been established that the voluntary resignation of an employee, evidenced by a clear expression of the employee's intention to quit the employment, promptly and unconditionally accepted by the employer, before the resignation is withdrawn by the employee, terminates the contract of employment.

The commission finds that the evidence did not establish that the employer had unconditionally accepted the employee's resignation before it was withdrawn. The employee was permitted to continue working and the supervisor expressed willingness on March 7 to attempt to resolve the employee's problems with the plant manager. Further, it was not until May 10, that the supervisor informed the employee that his resignation had been accepted. Finally, the evidence suggests that members of a board, rather than the supervisor alone, decided to accept the employee's resignation after it had already been withdrawn.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

The employer did not establish that the employee was discharged for misconduct connected with his work. The employee's statement to the supervisor that he would not report to the plant manager was inappropriate. However, the employee made the statement out of frustration and followed that statement with comments indicating a willingness to resolve his differences with the plant manager. Further, the employee later apologized for his comments. The employer did not appear at the hearing to explain why it did not allow the employee to continue in his work for the employer.

The commission therefore finds that in week 20 of 2004, the employee was discharged but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 20 of 2004, if he is otherwise qualified.

Dated and mailed September 28, 2004
opsalem . urr : 132 : 1 :   MC 626  VL 1007.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of the employee's credibility and demeanor. The ALJ expressed her opinion that the employee intended to quit. The commission has reversed the ALJ because it concludes that based on the employee's testimony it was not established that the employer accepted such resignation before it was withdrawn.

cc: Vanessa Carroll


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