BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

ROGER A. SCHNEIDER, Employee

Involving the account of

STOUGHTON TRAILERS INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-000262 MD


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby, and adopts such findings and conclusions as its own, except as herewith modified:

Delete the second paragraph of the Findings of Fact and Conclusions of Law, and replace it with the following:

The employe was a member of a union that called a strike against the employer that began on April 25th, 1988 (week 18). During the course of the strike, the employe and a number of other striking workers, including the employe's brother, Ed, had a confrontation with two supervisory personnel on the opposite side of a chain link fence surrounding the employer's parking lot. As he stood close to the fence, accusing the supervisors in connection with an incident earlier that day in which a fellow striker had been injured by a strike-breaker's automobile, the other strikers behind the employe began throwing rocks over his head and over the fence, in the direction of the supervisory personnel. Both supervisory personnel also threw rocks towards the strikers. Shouts and accusations were exchanged. Although he shouted at the supervisors, the employe did not throw anything in their direction. On December 22nd, 1988 (week 52), the employer notified the employe that he was discharged from his employment.

DECISION

The Appeal Tribunal Decision is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employe is eligible for benefits, if he is otherwise qualified.

Dated and mailed April 11, 1989
110 : CD0667  PC 714.03   MC 680.05  MC 683 

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

Two of the employer's supervisors testified at the hearing that they saw the employe throw rocks at them from the other side of the chain link fence. The employe, however, testified at the hearing that he threw no rocks. The Administrative Law Judge, who had the opportunity to observe all of the witnesses as they testified, obviously credited the testimony of the employe over the testimony of the supervisors, and concluded that he had not in fact thrown any rocks at them. The Commission agrees that the testimony of the employe is more credible.

Four or five strikers were present on the other side of the fence at the time this incident occurred. One of them was the employe's brother, Ed Schneider, who (according to the supervisors) closely resembles the employe. In their written statements prepared at the time, both of the supervisors identified the person throwing the rocks as Ed Schneider. Captions written on the back of the photographs, received into evidence as Exhibit 3, also stated that they showed Ed Schneider as the person throwing rocks. These statements were all later altered to cross out the name "Ed" and replace it with the name "Roger" based, apparently, on information from other persons, not present at the time, that the person in question was in fact Roger Schneider. These circumstances bring the identification of Roger Schneider as the rock thrower into question.

Additionally, the photographs appear to confirm the testimony of Roger Schneider that, at the time of the incident, he was approximately three to four feet away from the fence, with the other employes behind him throwing rocks over his head, and to disprove the testimony of the supervisors that Schneider was either seven to ten feet away from the fence (according to Zimdars) or no closer than 20 feet to the fence (according to Doverspike). The testimony of Zimdars and Doverspike, that the rock thrower was as far back from the fence as they claimed, would in fact be more consistent with a conclusion that the rocks were thrown by Ed Schneider, who according to the employe was some distance behind him, as were the other strikers.

In its petition for review, the employer argues that its witnesses identified Roger Schneider as a person who had thrown rocks at them and that its witnesses were "credible". While the standard applied by a reviewing court to determine whether or not to affirm findings of fact made by the Commission is whether those findings are supported by credible evidence, this is not the standard that applies to efforts by employers to prove that employes are guilty of misconduct. An employer bears the burden of proving, by a preponderance of the evidence, the facts necessary to establish that an employe is guilty of misconduct. Assuming for the sake of discussion that the testimony of the supervisors in this case was "credible", the Commission has affirmed because it has found the testimony of the employe to have been more credible than the testimony of the supervisors, and because it has concluded that the employer failed to meet its burden of proving by a preponderance of the evidence that the employe engaged in rock-throwing.

cc: Attorney George Graf


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