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


SCOTT R HARSH, Employee

AMBASSADOR STEEL CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00201424EC


O R D E R

Pursuant to authority granted in Wis. Stat. § § 108.09(6)(c) and (d), the commission sets aside the September 8, 2000 appeal tribunal decision in this matter and remands it to the Department of Workforce Development for de novo (new) hearing and decision. The issue in the case is whether the employee had good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b), to quit his employment. The employee has asserted that unsafe working conditions gave him good cause to quit the employment. His petition for review includes newly discovered evidence, indeed evidence that was not even in existence at the time of hearing, in support of his claim. That evidence is a copy of a settlement agreement between the employer and OSHA and an accompanying December 2, 2000 cover letter from OSHA to the employee. The settlement agreement on its face does not list all the violations OSHA found against the employer and, with regard to the violations it does list, does not indicate what those violations were. It will be the employee's evidentiary burden to establish that there were unsafe working conditions, as evidenced by OSHA violations, with regard to the employee's work (as opposed to violations in areas of the plant where the employee did not work). Finally, if the administrative law judge deems it appropriate, he or she is free to include in the record of the new hearing the record established at the September 6, 2000 hearing in this case.

Dated and mailed February 13, 2001
harshsc.usd : 105 : 1 PC 731 PC 740

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission has accepted the employee's petition for review, despite its having been late. The standard for a late appeal is "reason beyond control." The basis for the employee's appeal is the results of an OSHA investigation, results which were not yet in existence as of the end of the appeal period. As such, the employee's petition must be deemed to have been late for a reason beyond his control. In the alternative, the OSHA investigation results constitute newly discovered evidence within the meaning of Wis. Stat. § 108.09(6)(c).

cc: AMBASSADOR STEEL CORP

ATTORNEY STEPHEN L WELD
WELD RILEY PRENN & RICCI SC


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uploaded 2001/02/16