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

MICHAEL B WEBER, Employee

GUY O NEILL MFG SERVICES CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08400324AP

ORDER


Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the appeal tribunal decision in the above-referenced matter and remands the matter for a new hearing and decision before a different ALJ. The parties are instructed to bring evidence regarding the separation of employment and the status of the employee's driver's license at time of hire and during his employment. Additionally, the hearing office should arrange to have a witness from the Department of Motor Vehicles testify regarding the status of the employee's driver's license during the relevant period. As mentioned, upon conclusion of the hearing, the administrative law judge should issue an appeal tribunal decision.

Dated and mailed May 2, 2008
webermi . upr : 150 : 8  PC 714.07

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision arguing that his discharge was not for misconduct connected with the employment. Specifically, he disputed the ALJ's findings regarding the status of his driver's license during the course of his employment.

At the hearing, the employer argued that the employee was discharged for dishonesty; specifically for incorrectly claiming that he had a valid driver's license when hired and during the course of his employment. Yet, at the hearing, the employer only offered hearsay to support its claims. The employee testified that he had a valid driver's license during the relevant period even though he plead "no contest" to a charge of driving while intoxicated, not his first, and he did not physically have proof to support his testimony because (1) he did not wish to pay for a duplicate license and (2) the motor vehicle records were incorrect and he hired an attorney to rectify the matter.

The administrative law judge received permission from the parties to contact the Department of Motor Vehicles ex parte and referenced such a contact in her decision. However, it is unclear with whom the administrative law judge spoke, and from where that individual was obtaining the information that he or she was relaying to the administrative law judge. The commission remands the matter for a new hearing because the finding that the employee's driver's license was suspended was not supported by competent evidence.

[LIRC Decision following remand and subsequent appeal tribunal decision.]

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uploaded 2008/05/05