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

GRANT M GALICA, Employee

JELD WEN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403321AP


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 beginning in week 31 of 2002, if otherwise qualified.

Dated and mailed April 29, 2003
galicgr . usd : 132 : 1  PC 714.07  PC 714.11

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged but not for misconduct connected with his work. The employer argues that the report of the group manager falls under the business record exception to the hearsay rule. However, even considering the report, a business record does not change the fact that the statements attributed to various workers contained therein are hearsay. The employer also argues that the complaint by Ms. Rescheske was an "excited utterance." The evidence indicated that two hours after the alleged incident, and upon complaint not by Ms. Rescheske but by her husband, the employer approached Ms. Rescheske while she was working at her machine. There is nothing in the record that establishes Ms. Rescheske's complaint was spontaneous. The evidence did not demonstrate that Ms. Rescheske was reporting the incident while still "under the stress of excitement caused by the event." The assertion that Ms. Rescheske stated that she was "offended" by the employee's conduct is insufficient to place the complaint under the "excited utterance" exception to the hearsay rule.

Finally, the employer argues that the employee's failure to give an unequivocal denial to making the comment supports a finding of misconduct. The commission is unwilling to find misconduct based on the employee's failure to unequivocally deny a statement that was not proven to have been made. Further, the testimony established that the employer had the ability to present firsthand witnesses at the hearing but has a corporate policy not to bring employees to hearings. Tr. at 27. It was the employer's burden to establish that the employee was discharged for misconduct connected with his employment. The employer did not meet its burden of proof in this case.

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

cc: 
Jeld-Wen, Inc. (Oshkosh, Wisconsin)
C. Robert Sturm


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/05/09