JONATHAN A CRUMBIE, Employee

WALGREEN CO ILLINOIS, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employer's request for hearing is dismissed, and the department's determination remains in effect.

Dated and mailed November 19, 2003
crumbjo . usd : 115 : 1   PC 712.5

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The employer appealed the LID, and the department, on July 14, 2003, mailed a confirmation that the appeal had been received. This confirmation stated that, "It is the responsibility of the participants to arrange time off from their everyday affairs, including management duties, work, .etc. However, if you, your representative and/or witnesses have conflicts attending a hearing, notify the hearing office immediately."

A notice of hearing was mailed to the parties on July 22, 2003, indicating that the hearing had been scheduled for July 29, 2003, at 12:30 p.m. This notice of hearing stated that, "Postponements are not granted for mere the convenience of the parties, their representatives, or witness(es). All participants are expected to arrange time off from everyday affairs, including management duties, work, .etc."

The department apparently did not hear anything from the employer until 9:55 a.m. on September 29, 2003, the day of the hearing. The employer's representative indicated in this telephone contact that the employer's witness, "Eric Eisensel," was in Chicago for a conference that day, and that the agent wasn't informed of this fact until late the day before. The department denied the postponement request. The employer did not appear for the hearing, and the administrative law judge (ALJ) issued a dismissal order on July 29, 2003.

In correspondence postmarked August 19, 2003, the employer filed a timely petition for commission review. In this petition, the employer's representative presents the following basis for the appeal:

The first hand witness and Loss Prevention Supervisor Erik Weisensel was unavailable to attend the previous hearing scheduled 7/19/03 due to a mandatory training meeting at the employer's corporate office.

The commission's practice is to remand petitions such as this one to the department for an evidentiary hearing on the issue of good cause for failure to appear unless, on its face, the petition does not state good cause.

The standard for failing to appear at a hearing is "good cause." This is, a party who misses a hearing is entitled to further hearing if the party establishes good cause for its initial failure to appear. The courts have defined this standard to be "excusable neglect," that is, the neglect a reasonably prudent person might commit in similar circumstances. Kautzman v. Abraham Isaac & Jacob, UI Dec. Hearing No. 98606107MW (LIRC Dec. 23, 1998)

Here, the employer failed to appear at the hearing because its primary witness had a scheduling conflict and its request for postponement on that basis had been denied.

Wis. Adm. Code § DWD 140.08, states as follows, in relevant part:

(1) A party who requests a postponement of a hearing shall make the request known to the hearing office as soon as the party becomes aware that a postponement is necessary. Unreasonable delay in requesting a postponement may be the basis for denial of the request.

(2) No postponements may be granted for the mere convenience of a party. All parties are expected to arrange time off from their everyday affairs, including management duties, work and school, to attend hearings. The hearing office or the administrative law judge scheduled to conduct the hearing may grant a postponement only for an exceptional reason. An exceptional reason may include circumstances such as the following:

* * * * *

(e) A business meeting of a necessary witness which was scheduled prior to receipt of the hearing notice and which cannot be re-scheduled.

Here, it would have to be assumed that the meeting the witness was attending on the date of the hearing, whether it is characterized as a conference or a training meeting, had been scheduled well in advance of the date of the hearing. Despite this fact, as well as the fact that the parties had been reminded in several different mailings from the department of the importance of providing dates of possible conflict and of prompt presentation of postponement requests, the employer waited until two and a half hours before the hearing was scheduled to commence to request a postponement.

Under these facts, where the meeting the witness was attending on the date of the hearing was the type of event typically scheduled in advance (see, Gillon v. Hondo Inc. UI Hearing No. 00603849MW (LIRC Aug. 25, 2000); Young v. First Healthcare Corp. UI Hearing No. 98605515MW (LIRC Dec. 9. 1998)); where the employer had been reminded several times of its scheduling/postponement request obligations (see, Gillon, supra); and where the postponement request was presented the day of the hearing (see, Wis. Adm. Code § 140.08(2)(e)), the commission concludes that the employer failed to sustain its burden to show good cause. See, Coleman v. United Retail, Inc., UI Hearing No. 02607460RC (LIRC March 7, 2003).

cc: Walgreen Company (Deerfield, IL)

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uploaded 2003/11/24