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

RICHARD K STENSRUD, Employee

COMSTOCK DAIRY ENTERPRISES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201169EC


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 ineligible for benefits beginning in week 18 of 2007, 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. The employee is required to repay the sum of $2,099 to the Unemployment Reserve Fund. The benefit payment for week 21 of 2007 and $191 of the benefit payment for week 22 of 2007 were withheld as a forfeiture. Since benefits are now denied for those weeks, those payments cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $420.

Dated and mailed October 9, 2007
stensri . usd : 132 : 6   MC 640.05  BR 319.4

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found the employer discharged him for misconduct connected with his work for the employer. In his petition for review, the employee sets forth his version of the events that led to his separation. The commission notes that its review is based on testimony presented under oath at the hearing and it cannot consider factual assertions that are not supported by testimony offered at the hearing. In this case, the employee's supervisor testified that the employee twice threatened to punch the supervisor's lights out. The employee denied making such threat. The critical question 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 ALJ, 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 employee's version. The commission has found no reason in the testimony or elsewhere in the record to question the ALJ's credibility determination. Therefore, it will defer to the judgment of the ALJ as to credibility.

The employer did respond to the department's initial request for information by returning the UCB-16 separation notice. The employer's witness testified that he did not receive any follow-up telephone request to provide additional information. The ALJ credited the employer's witness's testimony. Again, the commission has found no reason in the record to disturb that credibility determination.

The employee states that before the second hearing he notified the hearing office that he had two witnesses and was told that witnesses were not needed. The second hearing was scheduled to address whether the employer provided information requested by the department. The employee does not indicate what personal knowledge his potential witnesses would have had to offer on such issue.

cc: Crystal Lake Cheese Factory



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uploaded 2007/10/22