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

LISA G SUMMERS, Employee

WAL-MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03610956MW


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.

DECISION

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 March 9, 2004
summeli . usd : 115 : 1   PC 712.6

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

A department determination awarding benefits was dated and mailed on November 1, 2003, and the employer filed a timely appeal of this determination on November 17, 2003. This determination, in its explanation of the appeal process, stated in bold type in capital letters, "Immediately start preparing for a hearing since hearing notices may be mailed only 6 days prior to the scheduled hearing."

The department acknowledged the employer's appeal in written correspondence dated November 20, 2003, and stated in this correspondence that, if a party or its representative or witness had "conflicts attending a hearing," they were to "notify the hearing office immediately."

In correspondence mailed to the employer and its agent on December 5, 2003, the department enclosed hearing instructions, and advised that either or both parties would be participating by telephone and that a hearing notice would be sent within the next several weeks establishing the date and time for the hearing.

The hearing notice was dated and mailed to the employer's agent on December 8, 2003, and stated that the hearing was scheduled to be conducted at 8:00 a.m. on Monday, December 15, 2003, by telephone. The employer/appellant failed to appear at the hearing.

In its petition for commission review, the employer's agent represents as follows in this regard:

. . .our office did not receive a copy of the hearing notice in sufficient time for the employer to adequately prepare. The specialist for the state of Wi[sconsin] received the hearing notice on Friday the 12th and the hearing was scheduled for Monday 15th.

Neither the employer nor the agent notified the department that its witnesses would be unavailable on certain dates, requested a postponement of the hearing, notified the department that it would not be appearing at the hearing, or appeared at the hearing.

The standard for excusing a failure to appear at a hearing is "good cause." That 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).

The employer concedes that the hearing notice was received at the offices of its agent no later than Friday, December 12. The employer and its agent were on notice, since at least November 17, 2003, that they should be preparing for hearing since hearings could be scheduled on short notice, and that they should immediately notify the department of any upcoming scheduling conflicts for their representatives or witnesses. Despite these cautions, and the four-week preparation period, the employer was not prepared for hearing. Moreover, the employer made no effort to contact the department prior to hearing to determine whether its circumstances would qualify for a postponement or other consideration, or to notify the department that it did not intend to appear for the hearing. These are not the actions of a reasonably prudent party, and the commission concludes as a result that the employer failed to show good cause for its failure to appear at the properly noticed hearing and its appeal should be dismissed as a result.

cc: Wal-Mart (Raddiff, KY)


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