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


MARK R BURNS, Employe

SCHNEIDER NATIONAL CARRIERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99402068SH


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 employe worked for the employer, a trucking company, for about one year as a truck driver. His last day of work was July 31, 1999 (week 31).

The initial issue which must be decided is whether the employe quit or was discharged.

On July 28, 1999, the employe called the employer and verbally submitted a two week notice of quitting. He informed the employer that he would be working through August 11, 1999 (week 33).

On July 30, the employe delivered a load to Owensboro, Kentucky. He was told that the employer wanted him to pick up a load from the same location and deliver it to Virginia, approximately 600 miles. Because he was running low on fuel, he drove to the employer's fuel station in Indiana. When he got to Indiana, he realized that he only had $5.00 with him and that he could not live on that amount if he had to make an additional delivery. He attempted to get an advance on his fuel card and was denied. He called the employer's customer service representative for a $50.00 advance. The customer service representative would not authorize the advance. Therefore, the representative attempted to contact the employe's supervisor. Since the representative was unable to contact the employe's supervisor, the employe was not given the advance. Therefore, the employe returned home without making the delivery.

On August 2, (week 32) the employe had two conversations with his supervisor. When he first talked with his supervisor, he thought that he was continuing to work for the employer until August 11. However, his supervisor called him again and asked him when he could return the employer's truck.

The employer alleged that the employe quit his employment when he failed to pick up the load in Owensboro, Kentucky and make the delivery to Virginia. However, the employer was unable to sustain its allegations.

The circumstances of this separation fall under the "accelerated quit" principle. Essentially, if an employe gives a future date as a date of quit, and the employer requires the employe to separate from the employment at an earlier date (and the earlier separation itself is not for a disqualifying reason), then the employe is eligible for benefits from the date of separation to the date the employe originally gave as the anticipated quit date. This principle has precedence in commission decisions:

"If an employe gives the employer notice of his intended resignation, and sets a date for that resignation to become effective, and if the employer refuses to permit the employe to continue working up until the time that notice would have been effective, the employe will be eligible for benefits until the time that the resignation would have become effective unless there was some intervening misconduct on his part."

Boehm v. Downtown TV, No. 88-402052WU (LIRC, 6-29-89). This principle is also enunciated in the Department of Workforce Development's Unemployment Compensation Manual :

"When an employe gives notice of an intent to quit on a specific future date, an employer may terminate the individual at a date more convenient to the employer.

"The quit disqualification does not apply to the period between the last day of work and the date set by the employe. The quit issue does not arise until the effective date set by the employe."

Vol. 3, part VII, Ch. 1, pp. 82.

The circumstances of this case fall precisely within the accelerated quit principle. The employe gave an intended date of quit of August 11, 1999. The employer accelerated the separation to August 2, 1999 (week 32). The employer has not alleged that it chose to accelerate the employe's quitting because of any misconduct on the employe's part. Rather the employer considered the employe to have quit. The commission therefore finds that, in week 32 of 1999, the employer laid the employe off but not for misconduct connected with his employment. Based upon that separation, the employe therefore is eligible for benefits until the week he quit, (week 33) if he is otherwise qualified. The commission also finds that, in week 33 of 1999, the employe terminated his employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a), but not for a reason constituting an exception to the (7)(a) quit disqualification. There is no overpayment as a result of this decision.

DECISION

The appeal tribunal decision is reversed in part and affirmed in part. Accordingly, the employe is eligible for benefits as of week 31 of 1999, if he is otherwise qualified. The employe is ineligible for benefits beginning in week 33 of 1999, 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 his weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed December 27, 1999
burnsma.urr : 145 : 7 MC 627

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge, before determining to reverse the appeal tribunal decision in this matter. Such conferral is required where the commission is considering reversal of an appeal tribunal decision, and the administrative law judge had indicated that credibility was a factor in his or her decision-making. In this case, the commission does not disagree with any of the administrative law judge's findings of fact. Rather, the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.

cc:
CAROL WEIDINGER
R E HARRINGTON INC


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