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

LENARD C IVERSON, Employe

TRANS MET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99003698MD

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 35 of 1999, 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. The employe is required to repay the sum of $2,673 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on August 31, 1999 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 March 31, 2000
iversle.usd : 132 : 7   PC 715

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ 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 argues in his petition that his due process rights have been violated because the employer did not provide the statement of Ms. Miller at least three days prior to the hearing. The commission cannot agree. The hearing instructions (Form C) do indicate that parties are expected to provide any documents at least three days prior to the hearing, or they may not be considered as exhibits. Of course, since this was a telephone hearing the parties would not be at the same location and thus the department requires that documents be exchanged and submitted to the hearing office before the hearing. Such instruction tracks the language of the administrative code provision which deals with telephone hearing. Wis. Admin. Code § 140.11(6). The provision gives the ALJ the discretion to exclude documents not submitted at least three days before the hearing, but does not mandate exclusion. The employe had Ms. Miller's statement prior to the hearing, although he did not have it three days prior to the hearing.

The employe states in his petition that if he had known the statement would be used at the hearing he would have presented testimony of other individuals. However, the employe did know, prior to the hearing, that the statement would be used at the hearing. He just did not know that it would be used at the hearing three days before the hearing. While the employe generally states that he had insufficient time to present witnesses to counter the employer's testimony, he does not state that he even attempted to secure the testimony of other individuals once he received the document, or that the individuals refused or were unable to provide testimony because of short notice. There is no requirement that the employer provides the employe with a list of potential witnesses or the exact testimony a witness will provide. That the employer would present the testimony of Ms. Miller should not have been a surprise to the employe since his conduct toward her was mentioned in the discharge letter. While she is not specifically named in the discharge document, she was the only female worker under the employe's supervision prior to May 19, 1999. The employer had gone over its sexual harassment policy with the employe at that time. The employe was given the opportunity to both question Ms. Miller and to offer testimony on his own behalf.

The employe's brief does not allege that any potential witness he would have presented at the hearing was present at the time that the employe allegedly touched Ms. Miller's buttocks or breasts. Further, the employe did not even cross-examine Ms. Miller about such allegations. Finally, after reviewing the record the commission would find that the employe's discharge was for misconduct connected with his work if it considered only the employe's conduct toward Ms. Gordon.

cc: ATTORNEY GARY KRYSAK
BRAZEAU POTTER WEFEL & NETTESHEIM

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