Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Copps Corporation  v. Laverne Kertis and LIRC, (Court of Appeals Dist. 4, September 7, 2000; on appeal from Wis. Cir. Ct., Portage County) - not recommended for publication

Please note that Wis. Stat. § 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.

Digest Codes: MC 630.09  PC 714.04 PC 733

The employee started work for the employer, a wholesale and retail grocery chain, in November 1984 in Wisconsin Rapids. He worked as an assistant manager. In 1993 he moved to a Madison store as an assistant manager. On five Sundays and one holiday in December 1997 and January 1998 the employee reported more hours on a time reporting form than he actually spent in the employer’s store on those days. On February 6, 1998 a loss prevention specialist for the employer confronted the employee with information on the times the employee entered and left the store and the difference between those times and the hours listed on the time reporting forms. The employee explained that during the hours out of the store he was doing other work for the employer. The loss prevention specialist requested a written statement and the employee provided one. The employee was discharged on February 9, 1998. The commission, reversing a decision of an administrative law judge, found that the employer did not establish that the employee was discharged for misconduct and therefore concluded that his discharge was not for disqualifying misconduct. On review the circuit court noted that the commission found that the employee did not deliberately falsify his time records on the days in question. It found that the evidence supporting that finding of fact was not evidence upon which a reasonable person would rely. It found that there was no credible and substantial evidence supporting this finding of fact in the record or transcript. It also found that the record and transcript contained overwhelming evidence that the employee did falsify his time records. The circuit court remanded the matter to the commission. The commission appealed.

Held: Review in these matters is of the decision of the commission, not that of the circuit court. The commission found that the employee did not engage in misconduct because he performed work for the employer during those hours for which he claimed pay. This is a fact finding. The court of appeals reviews fact findings with differing degrees of deference. Fact findings of a trial court are given less deference than those of a jury. Review of an administrative agency’s findings is between those two, but closer to that of a jury.

The commission’s finding that the employee did not falsify his time records is supported only by his own testimony. Even though that testimony is self serving and the record provides grounds to question its veracity, it constitutes substantial evidence to support the commission’s findings. Testimony is not inherently incredible unless it is in conflict with the uniform course of nature or with fully established or conceded facts. Testimony conflicts are to be resolved by the commission. Although reasonable persons could have reached a different conclusion, that is not the question. The question is whether the evidence permitted a reasonable fact finder to reach the conclusion reached by the commission. We conclude that there is. The commission conducted the required credibility conference with the administrative law judge. The court must rely on the commission’s description of that conference since there is no other record of it. There is no basis in the record for setting aside the commission’s decision on due process grounds or because of any failure of the commission to consult with the administrative law judge and explain is variance.

Decision of the circuit court is reversed and the commission’s decision is affirmed. Benefits allowed.

Concurring Opinion: If this court’s review were permitted to be less deferential, the concurring judge may have reached a different conclusion.

[LIRC decision]Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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