STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

EUGENE HERMAN, Employee

Involving the account of

BOWLER PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93202096WU


Pursuant to the timely petition for review filed in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the appeal tribunal's findings of fact and conclusions of law are supported thereby. The commission therefore adopts the findings and conclusions of the appeal tribunal as its own.

DECISION

The decision of the appeal tribunal is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 24 of 1993, 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 his weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed March 31, 1994
132 : CD00228   VL 1007.15

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

 

MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that he voluntarily terminated his employment and not for any reason permitting immediate benefit payment. In his petition for review, the employe maintains that the evidence demonstrated that his job was in real jeopardy and that his decision to resign came as his best alternative providing him with the greatest opportunity of gaining employment as a guidance counselor in the future with another school district. The commission does not disagree with the employe's position. The employe's job was in jeopardy because he was recommended for nonrenewal. However, the fact remains that the ultimate decision as to whether to renew the employe's contract lay in the hands of seven individual board members. The employe did not demonstrate, to a certainty, that he would not have been renewed by the board. There is no doubt that the poor performance evaluations and recommendation of the principal would have played a part in the board's decision regarding whether to renew the employe's contract, but that in itself did not establish that the employe's position would not have been renewed.

The commission and courts have dealt with a number of cases in which a teacher voluntarily resigns in lieu of a private conference with the school board because the teacher be that discharge is imminent. See Dale Kothrade v Nicolet High School District, LIRC decision dated February 1, 1994; David J. Teske v. LIRC and Village of Lake Delton, Sauk County Court Case 90-CV-330, July 3, 1991; Michael J Bailey v LIRC and Weyauwega Public School, Dane County Court Case 86-CV- 505, March 11, 1987; Dean B. Abbott v. Pepin Public School and LIRC , Pepin County Court Case 83-CV-16, June 20, 1984. The aforementioned cases hold that resignation in lieu of what the emloye considers impending discharge constitutes a quitting.

The employe also maintains that he was forced to resign by the principal. However, the principal testified the employe was given the option to proceed to his conference with the school board. While the employe maintains that the principal essentially offered him a "deal",  i.e. a good recommendation if he would resign, the principal denied that he either made a deal with the employe or that he indicated the employe had no chance before the board.

The employe simply has not demonstrated that he was coerced into resigning. The most that the employe has demonstrated is that he made a valid professional decision to resign his position to avoid the potential that he would be discharged by the board and therefore have the discharge on his work history. That decision was a professional and personal decision that the employe had a right to make, the decision did not involve action or inaction on the part of the employer constituting good cause attributable to the employer. For these reasons, the commission agrees with the appeal tribunal that the employe did voluntarily terminate his employment and that he has not established that his termination was with good cause attributable to the employer or for any other reason permitting immediate benefit payment.

 

JAMES R. MEIER, COMMISSIONER (dissenting):

I disagree with the findings and conclusions reached by the majority and I dissent. I believe it is clear from the record that the employe did not wish to resign. He wanted the board to make its decision. The district administrator essentially coerced the employe to add the phrase "I resign" to a letter by making it clear that the employe would not get a letter of recommendation without resignation. It appears to me that the employe was entitled to both the decision by the board and the letter of recommendation. I would find a constructive discharge, no misconduct.

/s/ James R. Meier, Commissioner



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]
 


uploaded 2004/10/15