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

KEVIN S. SOMMERS, Employee

USF HOLLAND INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08400933AP


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 8 of 2008, if otherwise qualified.

Dated and mailed July 23, 2008
sommeke . usd : 164 : 9  PC 749

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer's agent argues that, subsequent to the hearing, the employer learned that the District Attorney's office has approved one count of felony theft against the employee. The employer requests that the commission withhold its ruling until the employee's pending criminal charge has been adjudicated. The employer's request is denied. The commission recently held that "criminal pleas, and even criminal judgments, are of no value to employers in proving misconduct under Wis.. Stat. § 108.04(5)." Albrecht v. Farm and Fleet of Monroe, Inc., UI Dec. Hearing No. 05C03647JV (LIRC Nov. 28, 2007). Consequently, even if the employer were to present evidence of a criminal conviction, it would have no bearing on the outcome of this case. The commission further notes that the employer had an opportunity to establish misconduct at the original hearing, but failed to present relevant evidence that was available to it, including the testimony of its confidential informant and any shipping manifests or bills of lading which may have demonstrated the whereabouts of the second printer prior to the theft. Because the commission agrees with the appeal tribunal that the employer failed to meet its burden of proof in this matter, the appeal tribunal decision is affirmed.

cc:
USF Holland, Holland MI
Retail Specialists - Geoffrey Hermsen
YRC Worldwide Inc. - Brian Simikoski



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