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

JOSE ZAVALA, Employee

PREMIERE HOME IMPROVEMENTS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05002172MD


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

On January 26, 2005, a department deputy issued a determination which held that in weeks 44 through 51 of 2001, the clamant worked for the employer and earned wages that should be used to reduce his weekly benefit payments. This resulted in an overpayment of $1,921.00. The employee filed a timely appeal.

The issue is whether the employee had good cause for failing to attend the originally scheduled hearing.

The case initially was scheduled for hearing on March 15, 2005. Both parties appeared. The employer's owner, however, was a friend of the administrative law judge. To avoid the appearance of bias, the parties agreed to postpone the hearing and to reschedule it before a different administrative law judge. The employer's owner testified at the hearing that he informed the administrative law judge, his friend, that he would be in Texas from April 1 through 4, 2005, but he would be available at any other time. They talked for some time as friends after the employee left.

The department, on March 25, 2005, (a Friday) sent a hearing notice indicating a new hearing would be held on Monday, April 4. The employer failed to appear, but the employee appeared and on April 6, 2005, the department issued an appeal tribunal decision that found that in weeks 44 through 51 of 2001, the employee did not work or earn wages in employment with the employer.

The employer's owner did not see the hearing notice until after he returned from Texas. Since he did not expect a hearing to be scheduled before he returned from Texas, he did not have his correspondence from the department monitored by any of his workers.

The commission finds that the employer had good cause for failing to attend the April 4, 2005, hearing. In this case, the employer informed the department that he could not attend a hearing until after his return from Texas. He did not have his mail monitored while he was out of state because he was not expecting to receive a hearing notice. This case is unusual since as the employer and the ALJ were friends they talked for some time after the hearing. The commission infers that the employer informed the ALJ of his trip with the idea that the ALJ would inform the schedulers that he would be out of town. The ALJ may have considered the employer's comments about the trip to be small talk and not have related the employer's statement that he was going to be out of state for a week to be a request by the employer to inform the schedulers of this fact. While the employer should have either called the hearing office to notify it of his vacation, or stressed to the ALJ that he would be not be available during the first week of May, the employer made a reasonable attempt to inform the department of this scheduling conflict.
The commission therefore finds that the employer had good cause for failing to attend the April 4, 2005, hearing, within the meaning of 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 of April 6, 2005, is set aside. The employer respondent's request for hearing is not denied. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed July 20, 2005
zavaljo . urr : 145 : 8  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 because the ALJ no longer works for the department. The commission further notes that the employer testified that he informed the ALJ that he would be out of state, and the ALJ did not dispute that but stated that he did not recall that it came up.


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uploaded 2005/07/25