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


WESLEY H BESHEARS, Employee

INTL CABLING SYSTEMS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00004185MD


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 ineligible for benefits beginning in week 24 of 2000, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed December 18, 2000
beshewe.usd : 132 : 1 VL 1007  VL 1014  PC 715

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employee 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. First, the commission agrees with the administrative law judge that the employee quit his employment. The employee had a choice to continue his employment or terminate the same by refusing to sign the letter of commitment. The commission credits the employer's testimony that the employee was notified that if he did not sign the agreement his employment would end. The employee refused to sign the agreement knowing that such refusal would lead to his unemployment. The employee had the last chance to act to preserve the employment relationship and refused to do so. The employee therefore voluntarily terminated his employment.

The employee maintains that the commission's decision in Strassburger v. Wal-Mart Associates, Inc., UI Dec. No. 98401594GB (LIRC Nov. 25, 1998), requires reversal in this case. The commission disagrees. Rather, the commission finds that the employer had a basis for the concerns raised in the letter of commitment.   There was nothing inherently wrong with asking that in the future the employee conform to reasonable standards of behavior.  The commission further finds that the employee did not have good cause attributable to the employer for quitting his employment.   The commission adheres to its reasoning in Miller v. LIRC, No. 92-CV-2953 (Wis. Cir. Ct. Waukesha County Jan. 24, 1994) Court of Appeals, District II, Case No. 94-0940, January 25, 1995 (unpublished), and more recently in Burton v. Signicast Corp, UI Dec. No. 00603251MW (LIRC Oct. 23, 2000), that refusing to sign such an agreement is a quitting, and not with good cause attributable to the employer.  In Burton, the employee refused to sign a corrective action plan because she disagreed with its contents. The commission found both that the employee quit her employment and that her quitting was not with good cause attributable to the employer. Indeed, in Burton not only did the document which the employee was being asked to sign accuse the employee of conduct with which she disagreed, it also required her to specifically indicate how she would improve her conduct in the future. As in Burton, the employee could have signed the agreement without admitting "guilt" or "confessing" to the allegations contained therein.

The contentions that the administrative law judge erred in relying on the hearsay or admitting hearsay into the record are without merit. If anything, the administrative law judge erred in not allowing more hearsay into the record. The fact is that as long as hearsay have probative value it is admissible an unemployment insurance hearing. The prohibition is that the administrative law judge may not base her decision solely on hearsay. The administrative law judge did not do so in this case. The testimony about customer complaints was admitted to show the reason for the employer's actions and not to establish the truth of the complaints made against the employee.

The commission agrees with the administrative law judge's decision not to contact a witness by telephone. First, while the administrative law judge can hold a hearing by telephone, this hearing was not by telephone. This was an in-person hearing. Further, the notice of hearing itself emphasized the fact that the parties were to appear in person and on the reverse side of the hearing notice contained detailed instructions regarding the hearing including the following: "If you have any witness(es), it is also your responsibility to inform them of the date, time and location of the hearing. You witness(es) should attend in person." The employee made no advance arrangements with the hearing office and received no permission to have the witness appear via telephone.  

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: ATTORNEY PAUL F X SCHWARTZ

ATTORNEY PAUL W SCHWARZENBART
LEE KILKELLY PAULSON & YOUNGER SC


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