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

DAWN E LE SAGE, Employee

MIDWAY MOTOR LODGE INC OF
GREEN BAY WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04401737AP


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 hearing notice at issue for the December 29, 2003, hearing was mailed on December 23, 2003, to the employer's address of record for unemployment insurance matters in Saint Louis, Missouri. The agent was closed for the holidays from Thursday, December 25 through Sunday December 28. The postal service delivered the hearing notice to the agent on Friday, December 26, however, no one was there to open the envelope and deliver it to the appropriate person. The agent's senior service representative assigned to the employer first became aware of the hearing notice at 9:30 a.m. on December 29, which was too late for the agent to arrange for employer witnesses. The agent requested and was denied a postponement.

The question to decide is whether the employer had good cause for failing to appear at the continued hearing.

The employer's agent contended that the employer's failure to appear at the December 29, 2003, hearing was with good cause because of her late receipt of the hearing notice. The commission agrees. The hearing notice was mailed on December 23. December 24 was Christmas Eve and December 25 was Christmas. The employer's agent is located in another state, so apart from the holidays, it was unlikely that the post office would have delivered the hearing notice to the agent on December 24. There was no mail delivery on December 25. The employer was closed because of the holidays on December 26. December 27 and 28 were weekend days when the employer was normally closed. Given the fact that the hearing notice was mailed six days before the hearing and that two of the days were holidays and two of the days were weekend days, and the fact that the agent was located in another state, the commission concludes that the employer had good cause for failing to appear at the hearing.

The commission, therefore, finds that the employer failed to appear at the hearing held on December 29, 2003, and that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the appeal tribunal decision dated August 9, 2004, is set aside, and the matter is remanded for a new hearing and decision on the merits of the case.

Dated and mailed October 7, 2004
lesagda . urr : 145 : 2  PC 712.6

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The facts in this case were not disputed. The commission reverses the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page
 


uploaded 2004/10/13