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

SHIRLEY A BROOKMAN, Employee

CORNWELL PERSONNEL ASSOCIATES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02607251MW


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, except that it makes the following modification:

The third sentence in the fourth paragraph of the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW is deleted.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified. She is not required to repay the sum of $1,156 to the Unemployment Reserve Fund.

Dated and mailed June 24, 2003
brooksh . usd : 164 : 2  PC 714.04  PC 714.02  PC 714.06

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer's petition for commission review contains references to statements the employee made to a UI adjudicator, and to testimony presented at a separate hearing involving the same parties. However, the commission is required to confine its review to that evidence which is in the hearing record for the instant case, and it is unable to consider statements made by the employee that are outside of the record.

In its petition the employer argues that it does not understand how the administrative law judge could have reversed the initial determination where it has electronic documentation of its contacts with the employee, which its witness testified were authentic, while the employee's testimony that she did not receive a job offer was based only on her memory. However, the appeal tribunal was not required to credit the employer's documentary evidence over the employee's sworn testimony. The commission conferred with the administrative law judge regarding his impressions of the credibility of the witnesses, and the administrative law judge indicated that he found the employee's testimony to be credible, particularly given that she had previously accepted a placement with the employer which paid substantially less than the wage purportedly offered at Osmonics. The administrative law judge did not credit the testimony of the employer's witness that he had an independent recollection of making the job offer, and had reservations about the accuracy of the employer's electronic records. The commission sees no reason to disagree with this credibility assessment, and it defers to the administrative law judge with regard to witness credibility. Consequently, the commission finds that no job offer was extended. The appeal tribunal decision is, accordingly, affirmed.

NOTE: The commission has modified the appeal tribunal decision to remove a reference to wage documentation. Although the employee may have referred to wage documentation at the hearing, it was not made a part of the hearing record.

cc: Pace Local 7232



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