CARRIE L MILESKI, Employee

COUNTY OF BROWN, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 7 of 2004, 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. There is no overpayment of benefits connected with this decision. The initial Benefit Computation (Form UCB-700), issued on February 17, 2004 is set aside. If benefit payments become payable
based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed May 13, 2005
milesca . usd : 132 : 1   PC 713  PC 749

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employee asserts that although the transcript of February 9, 2004, shows that the employee's recollection after the hearing may have been different than her testimony provided at the hearing, that discrepancy did not establish that the employee perjured herself. The employer testified that the employee admitted that she knew the co-worker was in the break room for 50 minutes, she recalled the conversation with Mr. Lutz and whether they should allow Mr. Zenko to remain on break. Syn. at 8. The employee testified at the arbitration hearing that Mr. Zenko did not exceed his break time and that she did not recall such conversation with Mr. Lutz. The February 9, 2004, transcript establishes that after giving her written statement and before the arbitration hearing the employee recalled the incidents. After reading the entire transcript it is clear that the employee was admitting that she recalled things after she signed her statement but prior to the arbitration hearing, but testified consistent with the written statement that she knew to be inconsistent with her recollection.

The employee argues that the ALJ's decision and findings are superfluous because a separate determination found the employee ineligible for benefits. However, the department is required to investigate an employee's eligibility for benefits and issue determinations that might bar or suspend benefits. Often the department issues multiple decisions relating to an employee's claim. It may be that a decision finds, as here, an employee is not available for work. That is a suspension that can change from week to week. The misconduct finding results in ineligibility until the employee requalifies. It further affects the employee and employer in terms of a future claim. The employee cannot use wages earned from the employer in any future claim and the employer is not liable for benefits the employee receives in this or any future claim. This system allows eligibility issues to be addressed at one time, avoiding the need for additional investigations and potential overpayments. The ALJ's decision was not an "advisory" decision.

Further, the fact that it is taking five or six days for the Wisconsin Employment Relations Commission to hold a hearing or that further hearing will take place does not mean that it is not possible to determine whether the employee was discharged for conduct constituting an intentional and substantial disregard of the employer's interests. The commission's decision is based on evidence presented at the hearing before the administrative law judge. The employer's testimony established that the employee admitted that she lied during the arbitration hearing. The employee did not appear at the unemployment insurance hearing to explain her conduct.

Finally, the employee cites Cornwell Personnel Associates, Ltd. v. DILHR, 92 Wis. 2d 53, 284 N.W.2d 706 (Ct. App. 1979), for the proposition that a party must be aggrieved by a decision in order to appeal. There is no requirement that in order to appeal an initial determination or an appeal tribunal decision that the party be aggrieved by that decision. A party must be aggrieved in order to seek judicial review.

cc:
Attorney John C. Jacques
Mark Delorme
Attorney Farrah N. W. Rifelj
Attorney Danielle L. Carne

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