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

MICHAEL S THELEN, Employee

UNITED PARCEL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02609501MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue to be decided is whether the employee had good cause for failing to appear at a hearing scheduled for October 17, 2002, at 8:30 a.m.

The employee's sister-in-law had a miscarriage on or about October 16, 2002, and the employee had to take care of his 3-year old nephew the following day while she was in the hospital recovering. As a result, the employee did not attend the October 17, 2002, hearing. The commission finds that the employee acted as a reasonably prudent person would do when he stayed at home to care for his nephew during a family emergency.

The commission finds that the employee had good cause for failing to appear at the October 17, 2002, hearing within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's request for a hearing on the merits is granted. The appeal tribunal decision issued on October 22, 2002, is set aside. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed March 13, 2003
thelemi . urr : 132 : 1  PC 712.5

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility or demeanor. The ALJ found as a fact that the employee missed the hearing to take care of his nephew. The ALJ questioned whether the employee made diligent efforts to request a postponement. However, whether the employee requested a postponement does not change the fact that he had a valid reason for missing the hearing. This is not a case where a party knows when the hearing notice is received that the party will be unable to attend the hearing, yet fails to request a postponement. The commission does not consider the employee's failure to call the hearing office between 7:45 a.m. and 8:30 a.m. on the day of the hearing negates his good cause for failing to appear at that hearing.

cc: 
United Parcel Service, Inc. (Elm Grove, Wisconsin)
United Parcel Service, Inc. (Oak Creek, Wisconsin)


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