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

DAVID A LANGOEHR, Employee

MASTER FLEET LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06400979GB


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 seven years as a diesel mechanic for the employer, a tractor/trailer repair facility. His last day of work was March 26, 2006 (week 13).

The issue is whether his separation from this employment was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

On Friday, March 24, 2006, after office hours and after his supervisors (Service Director Galski and Service Manager Kvitek) had left work, upon receiving his paycheck and forming the belief that the number of work hours he had been credited had been improperly reduced when he took a day of sick leave, the employee left a message on Galski's work voicemail to the effect that he was quitting at the end of the current pay period.

The employee worked his scheduled hours on Saturday, March 25, and Sunday, March 26.

On Sunday, March 26, the employee, who had reconsidered his decision to quit, left a second message on Galski's work voicemail stating that he had decided not to quit.

Galski and Kvitek returned to work on Monday, March 27. The employee came in to the office and spoke to Kvitek that day. Kvitek told the employee they were accepting his resignation immediately. The employee told Kvitek that he did not want to quit.

Prior to this conversation, Kvitak was aware of the voicemail messages the employee had left for Galski on March 24 and March 26.

In Opsal v. Mount Horeb Telephone Co., UI Hearing No. 04003045MD (LIRC Sept. 28, 2004), the commission reiterated and relied upon the following principle enunciated in Schallock v. Ind. Comm. and Sprague Elec. Co. (Wis. Cir. Ct. Dane Co., Jan. 28, 1958):

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.

As a result, unless some affirmative action had been taken by the employer to unconditionally accept the employee's March 24 resignation before his retraction of this resignation on March 26 or before the employer had reason to be aware of this retraction, the separation would be at the initiation of the employer and would properly be considered a discharge.

The evidence of record shows that the employer could not have unconditionally accepted the employee's resignation before it was aware that it had been retracted, because the employer became aware of both the resignation and the retraction at essentially the same time, i.e., when the March 24 and March 26 voice mail messages were retrieved on March 27. Kvitek's effort to accept the employee's resignation from the first message during his meeting with the employee on March 27 was ineffectual because Kvitek was aware prior to this "acceptance" that the employee had already retracted his resignation.

The separation, as a result, was a discharge.

The next question then is whether this discharge was for misconduct.

The employer cites the employee's comments to a coworker on March 26 as the basis for its contention that he engaged in misconduct. The employee admits that, prior to the start of his shift on Sunday, March 26, while he was in the hallway by the office and there were customers in the break room about one hundred feet away, he and a foreman engaged in a verbal altercation. He testified that he told the foreman, "it was none of his fucking business about my conversation and to keep his nose out of it;" and the foreman said to him to "go ahead and fucking quit" because the employee "was useless anyway." It is not clear which statement was made first. There is no other competent evidence as to this exchange.

Although worthy of some level of warning or discipline, this use of a single profanity to a superior, but not a supervisor, which the record shows was probably uttered at a sufficient distance from customers not to have been heard by them and which may have been provoked, does not constitute misconduct.

The commission concludes that, in week 13 of 2006, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 13 of 2006, if otherwise qualified.

Dated and mailed July 26, 2006
langoda . urr : 115 : 2  MC 626  MC 640.15

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.



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