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

DIANE M WALCZAK, Employee

NORTHWESTERN MUTUAL LIFE INSURANCE CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600042MW


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 48 of 2001, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,970 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on November 29, 2001 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed August 7, 2002
walczdi . usd : 132 : 8   PC 749 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found she was discharged for misconduct connected with her work for the employer. The employee maintains that the employer's evidence against her was hearsay and circumstantial. However, although some of the employer's evidence was hearsay, the testimony offered by the employer's witnesses, including the tracking performed of the employee's work, and items found by the witnesses in inappropriate locations, clearly support the ALJ's findings in this case.

The employee's work was found in recycling bins, outgoing and incoming mail buckets, and intermingled with other worker's assignments. The employer's witness personally found the employee's work in outgoing mail buckets and recycling bins and saw the employee at other workers' cubicles while those workers were away from their desks. Further, when the employee was absent for a three-month period the employer received no complaints that old work was showing up in that assigned to other workers. The volume of work that was found in other locations indicates that it did not reach those places inadvertently. The employee was not performing her share of the work. In addition, although on occasion an individual may transfer work without formal approval, the employee was allowing a co-worker to do 50 percent of the work that was assigned to her. Obviously, it was not in the employer's interests to have the employee performing only half the work to which she was assigned and to have another worker perform the employee's work, since that worker presumably could have been performing additional work. Finally, the employee was unable to explain how to correctly complete certain forms when questioned by the employer. The reasonable inference from the record is that the employee was secreting her work in that assigned to co-workers, or placing it in outgoing and incoming mail buckets and recycling bins, because she did not know how to complete the work.

NOTE: The commission did consider the employee's brief even though it was not submitted by the deadline set forth in the briefing schedule. The commission had not begun review of the case before receiving the brief. The late receipt did not delay review or prejudice the employer. Generally, the commission will disregard a late brief only if the commission has completed its review and has simply to mail the decision reached. Further, Wis. Admin. Code § LIRC 2.015(2) applies to petitions, which are subject to statutorily imposed time limits, and not to late briefs, which are not subject to such time limits.

cc: 
Attorney Daniel R. Schoshinski
Attorney Michael P. Kohler


Appealed to Circuit Court. Affirmed March 17, 2003.

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uploaded 2002/09/03