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

DAVID A WALLS, Employee

CENTURY AUTO SALES LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04402526AP


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 18 of 2004, if otherwise qualified.

Dated and mailed December 22, 2004
wallsda : 150 : 4  PC 740

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision, contending that the employee converted the employer's monies for his personal use. Post-hearing, the petitioner's owner and sister, who was also the business' CPA and is an attorney, offered numerous documents and statements to allegedly support the petitioner's contention. The petitioner requested the opportunity to present the evidence as "newly discovered." While the commission does have the authority to "order the taking of additional evidence as to such matters as it may direct," under Wis. Stat. Section 108.09(6)(d), the commission finds that the petitioner has not met the necessary criteria to establish that the evidence is, in fact, newly discovered. In Koss Corp. v. DILHR, et. al., (Dane County Circuit Court, No. 153-261, July 5, 1997), citing Naden v. Johnson, 61 Wis. 2d. 384, 212 N.W. 2d 585 (1973), the following criteria were established for "newly discovered evidence:"

  1. the evidence came to the moving party's knowledge after the hearing,
  2. the moving party was not negligent in failing to discover it for the hearing originally,
  3. the evidence is material,
  4. the evidence is not merely cumulative to what was already introduced at the hearing, and
  5. it is reasonably probable that a different result would be reached on a new hearing, given this evidence.

At the hearing, the employer's owner testified that while he was unaware of certain transaction dates, his sister, the attorney and accountant, knew the exact dates. He also indicated that she advised him that it was not necessary for her to appear because he had "enough evidence." Additionally, many of the documents offered by the petitioner are printouts from the employer's Quick Books system. Certainly, the employer had this documentation available should it have wished to present it at the hearing. Also, while the petitioner argued that it was unable to obtain copies of checks prior to the hearing, petitioner could have attempted to subpoena a bank worker, the documents or even the customers themselves to present that evidence at the hearing. Petitioner knew at the time of the hearing that there were questions related to those documents. For these reasons, the commission rejects the petitioner's request for the opportunity to present additional evidence.

Following the commission's review of the record from the July 29, 2004 hearing, it agrees with the administrative law judge that the employer has not established that the employee's discharge was for misconduct connected with his employment. Therefore, the appeal tribunal decision is affirmed.

Finally, given the petitioner's allegations, the commission wishes to note that under Wis. Stat. Section 108.09(6)(c) if, within two years, the employee pleads guilty to theft from the employer or is convicted of theft following a plea of not guilty, the petitioner may request that the commission set aside the decision. The commission generally finds that such a guilty plea, or conviction constitutes "newly discovered evidence." Orsburn v. Preferred Transit Inc., UI Dec. Hearing No. 00002115JV (LIRC September 21, 2000).

cc: Sara Buscher


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