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


RICHARD D IVERSON, Employe

AMERICAN DOWN & TEXTILE CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001161LX


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. The commission also determines that further hearing is not warranted.

DECISION

The employer's request for further hearing is denied and the appeal tribunal decision is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed May 10, 2000
iversri.usd : 132 : 1 MC 653.1

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe was discharged from his employment but not for misconduct connected with his work. The employer states that it provided written documentation from the employe's supervisor that the employe exhibited symptoms of being under the influence of alcohol. However, while such document can be accepted at an unemployment insurance hearing, no finding of misconduct may be based solely on such documentation. A document setting forth an individual's observations is hearsay. It is a statement made by someone outside the hearing, and in this case was by someone who was not at the hearing to testify as to those observations. The employe is therefore deprived of the opportunity to cross-examine the individual making the alleged comments.

The employer also states that it offered firsthand testimony that the employe admitted that he reported to work under the influence of alcohol. However, the employe and employer testified that that the employe admitted drinking the night before and that he might have been suffering the effects of a hangover. That does not constitute an admission that the employe was under the influence at work. Again, while written documentation containing statements from individuals not at the hearing can be accepted at a hearing, the administrative law judge may not make a determination based solely on such statements. In this case, the human resource manager had no personal knowledge of the employe's alleged actions. The administrative law judge could not base his decision solely on the written statement submitted by the employer.

Finally, the notice of hearing advised parties to review the pamphlet "ATTENDING A UI HEARING" previously sent to the parties with the "CONFIRMATION OF TIMELY APPEAL" notice. In the "PREPARATION FOR THE HEARING" portion of that pamphlet parties are advised:

"Witnesses--In deciding who, if anyone, you should bring as a witness, keep in mind that the person should have actual, direct, personal knowledge of the facts relating to the appeal. Character witnesses are generally unnecessary. The hearing will be conducted within the general requirements of the rules of evidence, somewhat like a court, and the ALJ cannot make any findings based solely on hearsay testimony, that is, testimony not within the witness' own knowledge. An affidavit or a signed notarized statement cannot substitute for the personal appearance of a witness. The witness must be present at the hearing, sworn in, and subject to questioning by the ALJ and cross- examination by the other party."

Accordingly, the commission will not order further hearing in this matter.


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