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

GREGORY R McGEE, Employe

RFDF INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002007MD

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 employe is ineligible for benefits beginning in week 42 of 1998, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed November 18, 1999
mcgeegr.usd : 132 : 1  PC 714.07 PC 729  PC 749

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that he was discharged from his employment and for misconduct connected with his work. The employe basically attacks every aspect of the administrative law judge's decision, including procedures utilized before the administrative law judge held the hearing in this matter, in alleging that the decision is in error.

The commission's method of review is to read the synopsis, a rather extensive synopsis in this case, which contains a summation of the testimony offered in this case. The commission also reviews the exhibits submitted. The commission then considers the arguments advanced by the employe in his petition. However, in doing so the commission does not engage in review of each and every submission by the employe simply because it is attached to his petition. For example, the commission did not review, and will not review, such items as the "Selected Decisions given by the Umpire, Prior to 19th April, 1928, respecting Claims to Benefit and Donation," or the study of the British welfare system found in the article "Administrative Justice and the Unemployed." The commission determines whether the employe has been discharged under the Unemployment Insurance Law of the State of Wisconsin. The commission considers all applicable administrative code provisions, statutes, prior commission decisions, and court decisions of this jurisdiction in determining whether the employe is eligible for benefits. In particular, the commission determines whether the employe's actions constituted misconduct as set forth in Wis. Stat. § 108.04(5), as that term is defined in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).

The employer's witnesses testified that the employe engaged in inappropriate conduct by screaming, yelling and raising his voice at co-workers. The employer's witnesses testified that the employe was told that his conduct was not acceptable. While the employe denied the actions attributed to him, and that other workers expressed dissatisfaction with his actions, the commission like the ALJ does not credit the employe's denials. His actions were clearly unacceptable to the employer. The employer has a right to expect that the employe, and any employe, will act in an appropriate and a professional manner towards co-workers, and in the presence of consumers. The issue is not whether the employe was an otherwise good worker, the issue is whether the employe's discharge was for a reason that evinced an intentional and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employe.

The employe objects to hearsay testimony offered by the employer at the hearing. First, the commission notes that pursuant to Wis. Admin Code § 140.16(1), hearsay is permitted in an unemployment insurance hearing, but no decision may be made based solely on hearsay. Clearly, the ALJ's decision did not rest solely on hearsay. Second, the commission notes that the employe himself provided hearsay testimony at the hearing.

Finally, the employe argues in his petition that the administrative law judge may have been subject to bias of an unconscious nature. However, the mere possibility of bias, unconscious or otherwise, is not sufficient to impugn the ALJ's decision. Further, the commission has made its own decision in the case based on the evidence in the record, and it has done so without bias. It has adopted the Findings of Fact and Conclusions of Law of the administrative law judge as its own findings and conclusions because it arrived at those same findings and conclusions after conducting an independent review of the evidence. The commission is therefore confident that the employe has received a fair decision. After reviewing the record in this matter and considering the employe's numerous arguments in his petition, the commission agrees with the administrative law judge's findings and conclusions. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: ATTORNEY SUSAN SHEERAN
MELLI WALKER PEASE & RUHLY SC

ED BAKER

Appealed to Circuit Court. Appeal dismissed February 8, 2000   due to inadequate summons.

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