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

KENNETH D HARRIS, Employee

WALKER STAINLESS EQUIPMENT CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06200274RL


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 modifications:

In the first paragraph under the administrative law judge's Findings of Fact and Conclusions of Law delete "January 5, 2006" and insert therefor "January 6, 2006" and delete "January 6, 2006 (week 1)" and insert therefor "January 9, 2006 (week 2)."

Delete the seventh paragraph under the administrative law judge's Findings of Fact and Conclusions of Law and insert therefor:

"A police report may be admitted into an unemployment insurance hearing as an exception to the hearsay rules as a public record or report under Wis. Stat. § 908.03(8). However, the document submitted is not the actual police report. It purports to be a copy of a report. The report, specifically, the "supplemental report," presumably authored by Investigator Hom, is not signed or certified, and no one appeared at the hearing competent to identify it as Investigator Hom's report. Based on such identification/authentication shortcomings, and considering the fact that the employee denied when confronted by the employer that he made the statements attributed to him, the appeal tribunal gives that document little weight. The appeal tribunal will not credit that document over the employee's sworn testimony."

In the ninth paragraph under the administrative law judge's Findings of Fact and Conclusions of Law and in the DECISION paragraph delete "week 1 of 2006" and insert therefor "week 2 of 2006."

DECISION

The decision of the administrative law judge is amended as to the week of issue and, as amended, is affirmed. Accordingly, the employee is eligible for benefits as of week 2 of 2006 and thereafter, if he is otherwise qualified.

Dated and mailed May 19, 2006
harrike . umd : 132 : 8   MC 630.07  MC 640.03

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ 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 ALJ credited the employee's testimony that when questioned on January 5, 2006, he simply did not recall making the comment attributed to him seven months earlier. The employer did not establish that the employee was dishonest regarding who had accompanied him during his drive-by of the non-striker's residence. The employer also asserts that the employee was insubordinate when failing to continue with the investigation. The employee indicated that he was done answering the employer's questions about the police report because he maintained he had not spoken to the police. The employer wanted to continue questioning the employee about a statement attributed to him in a police report that he denied making.

The commission has considered the cases cited by the employer but does not find the facts and conclusions in those cases to warrant reversal in this case. The commission's finding of misconduct in the Ciszewski case was upheld by the circuit court on the grounds that the claimant had not been candid and truthful regarding his involvement in purchasing from a third party items stolen from the employer. In Rollo, the claimant repeatedly refused over the course of weeks to provide the employer with a police report, despite acknowledging that he had lied to the police. The employer had also made clear to the claimant in a letter that it would not tolerate dishonesty. Hallett involved a claimant who withheld information from the employer about patient care by maintaining a secret log.

The ALJ did not find the employee was dishonest with the employer. The employee was frustrated by the continuing inquiries about a statement that he denied making. The employee was not advised that his refusal to answer the employer's questions was jeopardizing his continued employment.

cc:
Johnson Truck Bodies
Wisconsin Independent Representation Enterprises LLC


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uploaded 2006/05/24