KRISTEN L MANOWSKE, Employee

US BANK NATIONAL ASSOCIATION, Employer

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 makes the following:

The employer timely appealed. By notice mailed May 16, 2002, a hearing was scheduled for 2:15 p.m., June 3, 2002, at the "ROLLING MEADOWS GOLF COURSE MEETING RM; 560 W ROLLING MEADOWS DR," Fond du Lac. The employer/appellant did not appear for the hearing as scheduled, arriving at 2:32 p.m. As a result, the hearing was not held. Within 21 days, the employer filed a request for a rehearing on the merits. A hearing then was scheduled on that request.

The employer's assistant vice president of human resources, who planned to observe the hearing, the employer's representative and the employer's witness arrived late at the hearing because they originally went to the wrong building on Rolling Meadows Drive. No one in the employer's party had attended a hearing at that site previously. At about 1:45 p.m. the party entered a multi-story brick building which had a "Rolling Meadows" sign on it. That building was an elder care facility operated by Fond du Lac County. The assistant vice president of human resources advised the receptionist that the party was there to attend an unemployment insurance hearing in the meeting room. She asked the receptionist if the party was in the right place. After making a telephone call, the receptionist directed the party to a meeting room on the lower level of the building. The party went downstairs as directed and waited outside a closed door with an "occupied" sign on it. The party believed another hearing was going on. At 2:20 p.m., the assistant vice president of human resources called the hearing office to confirm that the hearing had not been cancelled. At that time, the hearing office described the building that the hearing was to be held in as "barnlike." From that information, she concluded she was probably in the wrong place. She then talked to the elder care facility receptionist, who directed her to the building containing the golf course meeting room located across the parking lot.

The issue in this case is whether the employer had good cause for its failure to have appeared at the scheduled hearing on the merits on June 3 2002.

Under Wis. Admin. Code DWD § 140.13, an arrival at the hearing site more than 15 minutes after the scheduled starting time of the hearing may be deemed a failure to appear. In that case, the appeal may be dismissed, or the judge may require the late or absent party to submit a formal request for further hearing. Under Wis. Stat. § 108.09(4)(d) of the statutes, if the appellant fails to establish good cause for nonappearance, the appeal must be dismissed, and no hearing is held on the determination's merits. The courts have held that the good cause standard for missing a hearing is akin to "excusable neglect," the neglect a reasonably prudent person might be expected to commit in similar circumstances.

The commission finds that the employer did have good cause for failing to appear at the hearing. The employer acted as a reasonably prudent person would under similar circumstances. The employer was unfamiliar with the hearing location and therefore left for the hearing well in advance of the scheduled starting time. The employer arrived in the vicinity of the hearing one-half hour prior to the scheduled starting time. The employer went to the building containing a sign "Rolling Meadows." The employer noted to the receptionist that it was seeking the meeting room in which an unemployment insurance hearing was to be held. The employer could have shown the receptionist the hearing notice, but its failure to do so did not place its conduct beyond that encompassed by the concept of "excusable neglect."

The commission therefore finds that the employer failed to appear at the scheduled June 3, 2002, hearing, and that its failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

The decision of the administrative law judge is reversed. Accordingly, the employer's appeal is not dismissed. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed October 2, 2002
manowkr . urr : 132 : 3 : PC 712.3

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

The commission did consult with the ALJ who presided at the good cause hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he found the employer's testimony to be credible, except for its assertion that there was a sign on the building in which the hearing was to take place with the number "556." The commission agrees with the ALJ's credibility assessment but disagrees with the ALJ's legal conclusion.

cc: U S Bank National Association - Oshkosh, Wisconsin

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uploaded 2002/10/16