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

JEFFREY S CLEMONS, Employee

VOYAGER VILLAGE PROPERTY OWNERS ASSN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07200311EC


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, and after consultation with the administrative law judge, 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 ineligible for benefits beginning in week 3 of 2007 and until seven weeks have elapsed since the end of the week of the discharge and the employee has earned wages in covered employment equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed June 27, 2007
clemoje . usd : 150 : 1   PC 715  PC 729

/s/ James T. Flynn, Chairman

/s/ Ann L. Crump, Commissioner



MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision raising several concerns regarding the appeal hearing and evidence offered by the employer to support its claim that the employee's discharge was for misconduct connected with the employment. Given the serious nature of the concerns regarding the hearing process, the digital record of the appeal hearing has been reviewed.

As part of addressing the employee's specific concerns regarding the hearing process and the ALJ's rulings, the commission wishes to generally explain that in the context of unemployment insurance hearings, "statutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling." Wis. Admin. Code § DWD 140.16(1). As such, the ALJ's ruling allowing certain hearsay evidence into the record was proper. In making the ruling, the ALJ correctly explained that 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." Wis. Admin. Code § DWD 140.16(1).

Further, as the commission addresses a number of the other petition concerns about the hearing, the commission believes it is important to note that it was the ALJ's responsibility to

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. See Wis. Admin. Code § DWD 140.16(1), with emphasis added.

Concerns related to the Introduction of the Handbook Policy Evidence

The petitioner criticized the ALJ's refusal to allow the full Voyager Village policies to be read into the record and attached a copy of the 24-page policy handbook to his petition. However, the employee did not offer to submit a copy of the handbook to be marked as an exhibit for the hearing held on March 12, 2007. The March 12 hearing was conducted by telephone with a document packet sent to the parties in advance. The document packet did not include a copy of the policy book but instructed the parties,

If you have other documents that you want considered as exhibits, IMMEDIATELY MAIL ONE COPY TO THE HEARING OFFICE ADDRESS LISTED ABOVE AND TO ALL OTHER PARTIES AT THE ADDRESSES LISTED BELOW.

Neither party submitted a copy of the handbook to offer it as an exhibit as directed above and the ALJ was not obligated to allow such a lengthy document to be read into the record. Additionally, the ALJ allowed some leeway regarding the policy in the employee's cross-examination of the general manager. When the employee referenced having the general manager read several pages, the ALJ properly interrupted and asked the employee for clarification of the basis for the question. The employee explained that his questioning was to establish that no policy existed requiring that the general manager have the supervisor present in order to meet with the employee. Yet the general manager did not dispute this fact and, consequently, the judge properly halted further reading of the handbook policy. The employee did not raise additional issues with respect to information contained within the handbook that he felt was necessary for his case. Thus, even though the employee, in reviewing the handbook post hearing may have found some portions that he considered relevant, the commission will not consider any information from the handbook that is not part of the hearing record.

Opportunity to Present Evidence; Time Allotted

Next, the petitioner stated, "The judge said he had no time and he had other hearings." The digital record reflects that at approximately one hour and 40 minutes into the hearing and after several rulings regarding relevancy in the employee's cross-examination of his supervisor, the ALJ mentioned the limitation of time for the scheduled hearing and the need to take testimony from all witnesses, including the employee. The ALJ explained that it was important to give the employee the opportunity to provide material testimony. He further explained that his focus would be on the allegations by the general manager of the events leading to the discharge. Whether the employee was an otherwise good worker was irrelevant; the material evidence was the evidence regarding the incidents leading to discharge and, then, whether the evidence established that the discharge was for misconduct connected with the employment within the meaning of Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941). Finally, with respect to the hearing time issue, the ALJ indicated that if the hearing could not be completed in the time available, it would be continued to another date and time. There is no evidence that the ALJ unreasonably or unfairly limited the parties' presentation of evidence in this matter. In fact, the hearing file reflects that the hearing was scheduled for one hour and 30 minutes; the ALJ did not adjourn the hearing at that point, instead allowing the parties to present the relevant and material evidence over the course of two hours and 22 minutes.

Opportunity to Present Evidence; Witness Testimony

The employee asserted that the ALJ improperly refused to let his mother and a coworker testify. In the interests of efficiency and prior to ruling on whether the witnesses would testify, the ALJ solicited "offers of proof" from the employee to determine the nature of the witness testimony. The employee explained that his mother would provide testimony regarding meetings she was a witness to between the employee and his supervisor. Yet both the employee and the supervisor were already witnesses and could testify as to these conversations. The ALJ properly decided against taking her testimony as repetitious. With respect to the coworker, the employee indicated that the coworker would testify to a fistfight he witnessed on the golf course the prior summer and to establish that the employee "got along with coworkers." The ALJ ruled that this testimony was unnecessary, as the fight was too remote in time and unrelated to the events leading to the discharge. As for the "getting along with coworkers" the employee was attempting to present a form of character testimony, presumably to contradict the employer's allegations. Yet, character testimony is typically not elicited in an unemployment insurance hearing; instead, in a discharge case, the evidence regarding the reasons for discharge is the key focus. As a note, the ALJ also made a ruling limiting the testimony of the employer's witness, Ms. Neubich; he did not allow her to testify as to what she was told by the employer's witnesses. Such testimony was not firsthand in nature and would not be beneficial to the appeal tribunal's decision-making process.

Further, with respect to the ALJ's decision not to allow testimony regarding the department supervisor's alleged bad acts, it was the employee's actions leading to the discharge that were relevant, especially since the employer took no disciplinary action against the employee with respect to the supervisor's assertion that the employee was ice fishing instead of working. In a similar vein, the ALJ ruled that the general manager's allegations regarding the employee's conduct post discharge were also not relevant to the issue of misconduct.

In summary, the ALJ's rulings with respect to the witness testimony were proper.

Factual Assertions Made in the Petition and the Record

In the petition for review, the employee's statements as to what the hearing record reflected were not entirely accurate. First, he asserted that his immediate supervisor testified that he would not have fired the employee. However, both the digital record and the synopsis reflects that the supervisor expressed disappointment at not being allowed to attempt to resolve the situation with the employee instead of having the general manager discharge the employee. More importantly and as it relates both to the ALJ's decision and the commission's, whether the supervisor would have discharged the employee is irrelevant to both the ALJ and the commission. It was the general manager's decision to discharge the employee and, therefore, the general manager's reasons for the discharge are the necessary focus for determining whether misconduct exists. Next, the employee argued that the general manager incorrectly testified that the employee never signed an acknowledgement for the handbook. However the record does not support the employee's assertion; the general manager testified that the employee had signed an acknowledgment for the policy book. Along the same lines, the employee's petition references his supervisor taking "notes" off the doors the week after the ice-fishing incident, yet the supervisor actually testified that he only witnessed one note.

Petition Offering of Facts and Documents not Contained in the Hearing Record

While the petitioner offered to provide facts not presented at the hearing, the commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. The reverse side of the hearing notice directs parties to read the instructions contained carefully and warns parties

This hearing is your only opportunity to present documents and testimony as evidence in this case. Any future review of this case is based upon the record made at this hearing.

In addition, although the commission does have the discretion to order the taking of additional evidence, that authority is only exercised in a few exceptional circumstances that have not been established to exist in this matter. Specifically, in Koss Corp. v. DILHR, et. al., (Dane County Circuit Court, No. 153-261, July 5, 1997), citing Naden v. Johnson, 61 Wis. 2d. 384, 212 N.W. 2d 585 (1973), the following criteria were established for "newly discovered evidence:"

1. the evidence came to the moving party's knowledge after the hearing,
2. the moving party was not negligent in failing to discover it for the hearing originally,
3. the evidence is material,
4. the evidence is not merely cumulative to what was already introduced at the hearing, and
5. it is reasonably probable that a different result would be reached on a new hearing, given this evidence.

For the same reasons referenced earlier, the petitioner has failed to establish that the attached documents are material or that the documents are "newly discovered."

Thus, no additional hearing will be scheduled and the commission cannot consider and will not address the factual assertions made in the petition for review, which are not supported by the record. The commission will also not consider documents submitted within the petition for review that are not supported by the record.

Commission's Decision on the Merits

The critical question determining the outcome in this case is one of credibility. The employer's version of the facts and the employee's version of the facts are inconsistent. The commission realizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, the administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, did not credit the petitioner's version. The commission similarly credits the testimony of the general manager that, when the employee arrived at his office on January 18, 2007, the general manager explained that he would not meet him without his supervisor present and that, the employee repeatedly refused to leave. The employee's refusal was insubordinate and he had been previously warned by his supervisor regarding the underlying matter. In this context, the commission finds the employee's insubordination constituted misconduct connected with the employment.

 

ROBERT GLASER, Commissioner, (dissenting):

I respectfully dissent from the majority opinion. As mentioned by the majority, the parties presented conflicting evidence regarding the final incident in this matter. While the majority found that the employee was insubordinate to the general manager by refusing to leave the office, I find the employee's version more credible. In particular, it is reasonable that the employee sought to have his concerns of continuing harassment addressed by the employer's management. The employee's testimony was credible that, when he sought assistance from the general manager, the general manager simply discharged him.

__________________________________________
/s/ Robert Glaser, Commissioner



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