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


DAVID A STAHL, Employe

UNIVERSITY OF WISCONSIN OSHKOSH, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97402377AP


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. The commission also determines that further hearing is not warranted.

DECISION

The employe's request for further hearing is denied and the appeal tribunal decision is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 3 of 1997, 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 the employe's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed: January 23, 1998
stahlda.usd : 135 : 1  PC 715  PC 740

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review, the employe argues that he quit with good cause attributable to the employer, that he afforded the employer all avenues and alternatives to resolve his workplace problems prior to resigning, that he was unfairly reprimanded, harassed, retaliated against and forced to resign. The employe therefore contends that he is entitled to unemployment benefits as a result of his employment separation. The commission disagrees concluding that the record amply supports the ALJ's decision.

Much of the employe's petition restates his arguments made at hearing. The employe contends the was not adequately prepared for the hearing because his attorney at the last minute backed out. Legal representation is not required at an unemployment insurance hearing nor is the state required to provide parties with representation. Notwithstanding this, it is the commission's obligation and duty to review the record to ensure that the parties were provided with due process and a fair hearing. The record supports the commission's conclusion that neither party was denied its due process rights and that the ALJ conducted a fair hearing.

Many of the employe's arguments raised at hearing and now in his petition rest largely on credibility. The employe argues that his former supervisor lied at the hearing. In support of this contention the employe attached documents to his petition to substantiate his allegations of his supervisor's misrepresentations. The critical question in this case is one of credibility. The employer's version of the facts and the employe's version of the facts are somewhat inconsistent. The commission realizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, the administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, did not credit the employe's version. The commission has found no compelling reason in the testimony or elsewhere in the record to question the administrative law judge's credibility determination. Therefore it will defer to the judgment of the administrative law judge as to credibility and concludes that the record supports the ALJ's decision.

While the commission does have the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances. Here, there was adequate notice of the fact that the hearing would be the parties' only opportunity to present evidence. There is no credible and convincing evidence that this opportunity was improperly limited at the hearing, or that the employe discovered material noncumulative evidence since the hearing which he could not have known of before the hearing. Therefore, the additional factual assertions and documentation attached to the employe's petition cannot be considered by the commission as they are not part of the hearing record. Finally, the employe has not advanced any other compelling reason to grant a new hearing. Therefore, further hearing will not be granted and the documentation attached to the employe's petition will not be considered by the commission.


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