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

JESSE L ROBERTSON, Employee

MAHLER ENTERPRISES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03604155MW


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 17 of 2003, 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.

Dated and mailed October 31, 2003
roberje . usd : 115 : 1  MC 670

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Generally, it is misconduct when an employee uses physical force against another employee. Brown v. Grove Gear Division, UI Hearing No. 96600981RC (May 24, 1996). The commission has carved out a limited exception when an employee reasonably concludes that there is an imminent threat of physical harm and he acts to defend himself. See, e.g., Rogers v. Wisconsin Knife Works, Inc., UI Hearing No. 99001884JV (LIRC July 30, 1999) . The administrative law judge did not find credible the employee's testimony that his supervisor had touched him first and that he had felt cornered and threatened by these and other actions of the supervisor, based at least in part on the employee's failure to mention this at his discharge meeting, when it would have been logical to do so, and the commission has found no persuasive reason in the record to overturn this credibility determination.

In his petition, the employee questions why the supervisor and a witness to the confrontation were not called as witnesses at the hearing. The employer was not required to call these individuals as witnesses, and the employee could have done so but did not.

The employee requests a new hearing because he was not judged by a "a jury of his peers" at the hearing before the administrative law judge. However, a jury trial is not available in department administrative hearings.



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