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

CURTIS J. PEPLINSKI, Employee

ATLAS STAFFING INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11601581MW


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 36 of 2010, 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 his weekly benefit rate which would have been paid had the discharge not occurred. Benefits paid to the employee for weeks 51 of 2010 through 13 of 2011 in the amount of $1,875.00 will remain charged to the employer's account. No overpayment is created. The initial Benefit Computation (Form UCB-700), issued on February 16, 2011 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed July 28, 2011
peplicu . usd : 102 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee and the employer petitioned the appeal tribunal decision. In the employee's petition for commission review, he simply stated that he "believes that benefits should be allowed[.]" The employee did not specifically challenge any of the procedural or evidentiary rulings made by the administrative law judge, nor did he challenge any specific findings of fact as being unsupported by the record, nor did he specifically assert whether and why any conclusions of law are claimed to be in error. Thus, the commission has no specific indication of why the employee believes he should prevail on this record or what he claims was erroneously decided by the administrative law judge. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the administrative law judge are supported. Concluding that they are, the commission has adopted them as its own.

The employer terminated the employment relationship due to the employee's unacceptable attendance record. It was not established that the employer's attendance policy satisfied the statutory requirements set forth in Wis. Stat. § 108.04 (5g). Therefore, the commission did not find that the employer met the lower evidentiary burden of this section and proceeded to analyze whether it had met the higher evidentiary burden of misconduct. The employee's actions in failing to properly notify the employer of his absences after being warned amounted to an intentional and substantial disregard of the employer's interests and therefore constituted misconduct. See, Thurman v. Seek Career/Staffing Inc., UI Dec. Hearing No. 06603144MW (LIRC Oct. 6, 2006).

In the employer's petition for commission review, the human resources manager agrees with the administrative law judge's decision regarding the separation of employment; however, he disputes that the employer failed to provide correct and complete information requested by the department during the fact-finding investigation. The hearing notice explicitly stated that this would be a potential issue addressed during the hearing. Nonetheless, the employer failed to present any firsthand testimony to establish that the employer responded in a timely manner to the department adjudicator. The sole witness for the employer, the office manager, admitted that the telephone number the department adjudicator called on February 1, 2011, belonged to the employer's corporate office. He further testified that he was "not aware of why [the human resources manager] did not respond to the inquiry."

The commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission shall be based on the record of the case including the evidence previously submitted at hearing before the department. The law requires that the commission's review be based solely on the testimony and documents presented at the hearing before the administrative law judge. For this reason, the commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. Since the commission's review must therefore be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider the factual assertions made by the employer which are not supported by the record. As such, the new information provided by the human resources manager in the employer's petition for review will not be taken into account. The commission agrees with, and declines to overturn, the appeal tribunal decision.


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