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


KENNETH L BORCHARDT, Employee

WEYERHAEUSER CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00002241WR


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 employee is eligible for benefits, if otherwise qualified.

Dated and mailed February 22, 2001
borchke.usd : 135 : 1  PC 714.02  PC 714.07

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer contends that the ALJ erred in refusing to consider the employer's documentary evidence and in refusing to recognize the evidence of admissions by the employee. The employer therefore argues that after considering all of the evidence, the appeal tribunal decision should be reversed because the employee committed misconduct.

Specifically, the employer contends that the ALJ erred when he refused to consider and rely upon Exhibit 2, included notes taken by the employee's supervisor immediately after the March 16 incident involving the employee and a female co- worker.

The employer accurately notes that statutory and common law rules of evidence that are applicable to courts of record are not controlling with respect to UI hearings. In fact, Wis. Admin. Code DWD § 140.16 provides that the ALJ shall secure the facts in as direct and simple a manner as possible and that evidence having reasonable probative value is admissible but irrelevant, immaterial, and repetitious evidence is not admissible. The rule also provides that hearsay evidence is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under Chapter 908, Stats.

Citing DWD § 140.16, the employer agues that Exhibit 2, is admissible under the business records exception of Wis. Stat. § 908.03 (6) and argues that findings can be made based upon that exhibit. Wis. Stat § 908.03 (6), states that the following documents are not excluded by the hearsay rule:

"'A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness."

Generally, warnings or investigatory notes such as Exhibit 2 are not considered business records in the evidentiary sense since the authors or custodians often lack the required personal knowledge in which the records themselves are transmitted in the course of a business day. See Corporate Courier Express, Inc. v. LIRC & Christine M. Deel, Milwaukee County Circuit Court Case #99-CV-009373, Hearing No. 99603816MW, as it pertains to warnings.  Here, Mr. Martin and Mr. Doll lacked the personal knowledge of the incident that led to the employee's discharge as either was not a party or a witness to the controversy between the employee and the female co-worker, Ms. Spindler.

Having concluded that, the commission is satisfied that the ALJ afforded the appropriate weight to the investigatory notes. The notes were admitted into evidence and considered by the ALJ. However, because this hearsay evidence fails to meet any statutory exception under Chapter § 908, the ALJ could not base a finding of fact or conclusion of law on the notes themselves. Rather, Ms. Spindler and/or Mr. Miller's appearance at the hearing was critically important to refute the employee's testimony.

Indeed, both parties were sent a pamphlet on attending a UI hearing in which the parties were apprised that "In deciding who, if anyone, you should bring as a witness, keep in mind that the person should have actually, direct personal knowledge of the facts relating to the appeal. Character witnesses are generally unnecessary. The hearing will be conducted within the general requirements of the rules of evidence, somewhat like a court, and the ALJ cannot make any findings based solely on hearsay testimony, that is testimony not within the witness' own knowledge. An affidavit or a signed notarized statement cannot substitute for the personal appearance of a witness. The witness must be present at the hearing, sworn in and subject to questioning by the ALJ and cross-examination by the other party." See Attending a UI Hearing pamphlet. The commission therefore is satisfied that the employer failed to meet its burden of proof by producing eyewitnesses to the March 16 incident at the hearing.

Having concluded that, the commission concedes that by the employee's own admission(s), misconduct could be established. However, in this instance, the commission is unwilling to conclude that the employee's own behavior, by his own admissions establishes aggressive and threatening behavior.

In July of 1998, the employee was specifically warned that "any types of threats or any unbridle outbursts of anger or frustrations, are not acceptable behaviors and could lead to discharge." The employee was frustrated with the fact that his computer would not start and according to the employee, Ms. Spindler responded in kind to him when he swore. While two wrongs do not make a right, the commission cannot on the record before it, conclude that the employee's actions on the last day in question rose to the level of misconduct. Although the employee could have handled the situation in a calmer fashion, it is not all that clear that the employee's frustrations constituted an unbridle outburst of anger or frustration when by the employee's own admission the incident accelerated during his conversation with Ms. Spindler.

The commission therefore concludes that the employer failed to establish that the employee's discharge was for misconduct connected with his employment by failing to produce any witness with firsthand testimony about the March 16th incident. Lacking such firsthand testimony, the employer was unable to successfully rebut the employee's denial that he engaged in aggressive and threatening behavior. Because the employer failed to meet its burden of proof, the commission affirms the appeal tribunal decision.

cc: Attorney Jeanette C. Lytle


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