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

ETHEL A GNACINSKI, Employee

WALGREEN CO ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01200471RH


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 as of week 8 of 2001, if she is otherwise qualified.

Dated and mailed October 23, 2001
gnaciet . usd : 135 : 8   PC 714.07 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer explains that it is appealing the ALJ's decision which was based in part on a statement that the employee followed an assistant manager's actions. The employer argues that the assistant manager was not at the hearing and the store manager was not made aware of any such incident prior to the hearing. The employer contends that the employee's statements therefore were either hearsay or uncorroborated testimony. The commission disagrees for the following reasons.

First, the employee's testimony regarding the assistant manager does not constitute hearsay within the meaning of Wis. Stat. § 908.01(4)(b), Admission by a party opponent. The employee's statements as to what the assistant manager said were statements made by the employer's agent or servant concerning a matter within the scope of the agent's or servant's agency or employment made during the existence of the relationship, thereby rendering the statements non-hearsay within the meaning of Wis. Stat. § 908.01(4)b. Second, the commission notes that the employee's UCB-157 statement references the assistant manager's practices and statements and is consistent with the testimony the employee offered at the hearing. Thus, the fact that the store manager was unable to corroborate the employee's testimony regarding the assistant manager does not render the employee's statements any less credible or competent. For these reasons the appeal tribunal decision is affirmed.

cc: 
Walgreen's - Attn. Manager - Antigo, Wisconsin 54409
Attorney John O'Melia


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uploaded 2001/10/29