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

RANDY J CLEVELAND, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603081MW


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 12 of 2006, if otherwise qualified. This decision does not result in an overpayment.

Dated and mailed October 6, 2006
clevera . usd : 150 : 4   PC 715 PC 729 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision, contending that the employee terminated the employment and the quitting was not within any exception to allow for benefit payment. As part of the petition, the employer argued that the ALJ was biased against it. In particular, the employer's representative, its president, objected to (1) the employee's participation in the hearing by telephone, (2) the ALJ's question/comment regarding the likelihood that the employer's account would be charged if the employee were determined eligible for unemployment insurance benefits (3) the administrative law judge's rulings on exhibits (objection made at the hearing) and (4) the ALJ's decision to credit the employee's testimony in light of the employer's evidence.

Based upon the serious nature of the bias claim, the digital record in this matter has been reviewed. The general review reflects that the ALJ calmly introduced the hearing and explained the hearing procedures. She questioned the employer's witnesses in a limited fashion with the employer's representative actively taking a role in presenting the employer's case. She allowed the employer's representative procedural leeway in presenting the employer's evidence. Specifically, the representative jumped between attempting to give testimony and question witnesses. Instead of confronting the employer's representative regarding this failure to follow typical procedures, the ALJ allowed him to present his case as he wished and noted who was testifying while advising the person speaking that they were under oath.

With respect to the employer's specific complaints, the commission addresses them in the order set forth above.

(1) The employee's participation by telephone.

Department records reflect that, after the employee's May 8 appeal, the employee contacted the hearing office on May 12 to explain that he worked first shift and to request that the hearing be scheduled at the end of the day. He explained that he did not yet have a permanent local address and his permanent address was out of state. Given the potential mail delay, the employee was directed to contact the hearing office to check on a hearing date and time. On May 24, 2006, when the employee again contacted the hearing office, he was told of the June 5 hearing. On Monday, June 5, 2006, the employee called the hearing office and asked to participate by telephone. He explained that he had started a new job and believed that he was to have Monday off because he was scheduled to work the weekend. However, he learned the prior Friday that he was to work Monday. Under these circumstances, his request to participate by telephone was granted.

Wis. Admin. Code § DWD 140.11(1) provides that the "department may conduct hearing in whole or in part by telephone . . . when necessary to ensure a prompt hearing . . ." Based upon the above departmental records, the commission declines to find that the granting of the telephone request was improper or reflected a bias against the employer.

(2) The ALJ's comment about charging.

Next, while the president alleged that the administrative law judge's question regarding the representative's decision to participate in the hearing exhibited bias, the commission disagrees. Specifically, for some employing units chargeability is a factor in the decision to participate in a hearing or to challenge benefit eligibility.

Additionally, while the president attached a complaint letter for the senior administrative law judge arguing that the ALJ "glared at him," with only an audio record, the commission is unable to verify this complaint. The recording does not reflect that the ALJ used an improper tone or otherwise raised the issue in an inappropriate manner. Further, when the president explained his decision to participate, the ALJ dropped the matter without further comment or questions.

(3) Rulings on offered exhibits.

At the same point in the hearing, the president referenced making a "paper trail," leading the commission to next deal with the president's complaint during the hearing that the ALJ refused to mark offered exhibits. The petition also references a document containing the employee investigatory statement to the adjudicator as being part of the "legal file." However, the ALJ did not mark the document as an exhibit and, therefore, it was not received into the record of the hearing. (1)

Wis. Stat. § 108.09 (5)(a) provides:

Except as provided in s. 901.05 [relating to HIV testing], the manner in which claims shall be presented, the reports thereon required from the employee and from employers, and the conduct of hearings and appeals shall be governed by general department rules, whether or not they conform to common law or statutory rules of evidence and other technical rules of procedure, for determining the rights of the parties.

Further, Wis. Admin. Code § DWD 140.16 (1)), and provides:

Statutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling with respect to hearings. The administrative law judge shall secure the facts in as direct and simple a manner as possible. Evidence having reasonable probative value is admissible; but irrelevant, immaterial and repetitious evidence is not admissible. Hearsay evidence is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats.

In addition to the investigatory employee statement, the audio record reflects that the ALJ refused to mark the initial determination and the employer's UCB-23 Wage Verification and Eligibility Report as exhibits. (2)  Yet, the commission does not find that the ALJ's refusal to mark the exhibits demonstrated bias on its face and, based upon the clear identification of the documents in the digital record as well as the commission concerns, the commission will address the ALJ's rulings regarding the exhibits.

The ALJ's refusal to include the initial determination in the record of the public hearing was proper on two grounds. First, it is the procedural basis for the hearing and is part of the record as such and pursuant to Wis. Admin. Code § DWD 140.09(3). Second, the hearing is a de novo proceeding and the determination is not binding on the administrative law judge.

Next, the employer's UCB-23 wage verification report was not material for purposes of determining the nature of the separation. If an issue of concession of liability were present, the timeliness of the document or the content could be material. More importantly, it appears that the document was completed by an individual without firsthand dealings with the employee and, as such, was hearsay. Instead of relying on hearsay, the ALJ properly based her decision upon the testimony presented by the firsthand witnesses.

Finally, with respect to the employee's investigatory statement, the employer's president used the document in cross-examination of the witness. The president did not specifically request that it be marked or received into evidence and it was not.

(4) The ALJ's credibility assessment.

Ultimately, the decision in this matter hinges on credibility. The employer alleged that the employee voluntarily terminated his employment by not calling after the second interview and not reporting to work on Tuesday, March 21, 2006. The employee alleged a discharge, claiming that he was contacted by someone from the employer's offices and directed not to report to work after he notified it of a second absence due to interviewing with other employing units. It is seldom easy to resolve a case with two conflicting versions of the facts, especially when the testimony of the employee and the employer's human resource coordinator was inconsistent. In particular, the employee gave differing accounts of when he was informed work was no longer available and the human resource coordinator testified that he did and, then, did not, inform the employee that the work would only be for a "couple of days." Following the commission's independent review of the record, it adopts the findings of the appeal tribunal, finding that the employee did not voluntarily terminate his employment but was discharged. Further, the commission is confident that the petitioner has received a fair decision.

For these reasons, the appeal tribunal decision is affirmed.



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Footnotes:

(1)( Back ) Wis. Admin. Code § DWD 140.09(3) provides that the public hearing record includes, the initial determination, the exhibits submitted and marked as exhibits at the hearing , whether or not received by the ALJ, the appeal tribunal decision issued for the hearing, the hearing tapes, the written synopsis and the transcript if one is prepared at the department's direction.

(2)( Back ) A better practice would have been for the ALJ to mark these documents and make rulings on the record regarding their receipt than making rulings alone. The commission believes it is also important to note that at the end of the appeal tribunal decision, the ALJ indicated that the exhibits were not sent to the employee for review prior the issuance of the decision; copies were instead sent with her decision allowing benefits. 

 


uploaded 2006/10/09