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

RUSSELL J HORNICK, Employee

BORG PRECISION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04201316NR


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 17 of 2004, if otherwise qualified.

Dated and mailed December 30, 2004
horniru . usd : 132 : 1   PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer has petitioned for review of the appeal tribunal decision that found the employee was discharged but not for misconduct connected with his work. The employer first states that it believes it should have been allowed to have co-representatives so that Ms. Borgstrom could have responded to testimony offered by Mr. Hornick. However, one role of the representative is to question the witnesses. The employer's representative, Mr. Van Valkenburg, had the opportunity to question Ms. Borgstrom regarding any testimony she may have had to offer in response to testimony presented by the employee. Further, having more than one individual represent a party can be unwieldy and confusing for purposes of conducting a hearing and creating a record. While the pamphlet "Attending an Unemployment Insurance Hearing" does not specifically state that the employer may have only one representative, it does speak in the singular. Wis. Admin. Code ch. DWD 140, which governs unemployment insurance appeals, provides for a party to have a "representative," not representatives at the hearing. See Wis. Admin. Code § DWD 140.02. The ALJ also has the authority, on his or her own motion, to exclude witnesses from the hearing room until called to testify. The employer did not establish that Ms. Borgstrom's presence in the hearing room was essential to the presentation of the employer's case. See Wis. Admin. Code § DWD 140.15(3). In fact, a review of the digital recording does not indicate that the employer raised an objection to the sequestration of Ms. Borgstrom.

The ALJ can only consider evidence presented at the hearing. Although the employer may have previously submitted documentation to the adjudicator, that does not guarantee that the same information will be available to the ALJ. The ALJ gave Ms. Borgstrom the opportunity to go through her documentation and introduce documents not previously marked as exhibits.

The employer indicates that it believes the ALJ misunderstood its point regarding the employee questioning of what or how something was done. However, while the general manager indicated that on April 19 the employee argued with the general manager regarding the order of performing work, the employee maintained that he was merely informing the employer that some parts were late. The general manager acknowledged that questioning the order in which work is performed could be advantageous to the employer. Syn. at 7.

Notwithstanding the reason that there was a gap in documentation of the employee's shortcomings, the fact remains that a vast majority of the employer's documentation did not involve the employee's conduct in the last year of his employment. The employer documented what it considered to be inappropriate or unsatisfactory conduct on the part of the employee that occurred after he was rehired. The employee provided explanations at the hearing for his actions. For example, the employee explained that he took 30.5 hours to complete a job because a part was defective and he had to check all the parts. The employer considered that the employee ordered the general manager to fix a printer. However, the employee testified that he asked the general manager to do so. The employee denied packing parts that were "dinged up." The employer asserted that the employee worked on an operation he was told not to do. The employee testified that he was doing an additional operation because he had the time. The employee acknowledged that a cutter moved during one of the operations resulting in 12 scrapped parts. The employee did fail to complete his timesheet during one day as he had been instructed. However, he alerted the general manager of this fact.

The employer also states that it felt intimidated by the manner in which the ALJ conducted the hearing and had difficulty hearing her when she spoke. The parties did at times indicate that they could not hear the ALJ. The ALJ would then repeat herself. The commission does not question the employer's statement that the employer felt intimidated by the ALJ. However, after listening to the digital recording, the commission cannot determine why the employer would have found the ALJ's manner intimidating. The ALJ did not raise her voice to the parties, and in the commission's opinion has a rather low-key manner of holding hearings. The employer does not indicate that the ALJ engaged in any non-verbal behavior that it found intimidating.

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



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


uploaded 2005/01/04