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

TERRI J BANUELOS, Employee

GOODYEAR TIRE & RUBBER CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05002604MD


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, beginning in week 17 of 2005 the employee is eligible for benefits, if she is otherwise qualified.

Dated and mailed August 26, 2005
banuete . usd : 150 : 1 PC 734  PC 749

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that it should be entitled to an additional hearing because the employer did not have a representative at the hearing and it was not advised that the claimant had a representative. Yet the employer appeared at the hearing and was represented by its production manager. While the employee may have been represented by an attorney, parties are only entitled to limited discovery pursuant to Wis. Admin. Code DWD § 140 and the department is not required to notify parties of representation. Accordingly, the commission rejects the petitioner's request for additional hearing and reaches its decision on the June 29, 2005 hearing record.

The remaining petition argument, that the employee's failure to follow a "stay away" letter constituted misconduct was made at the hearing. The administrative law judge was not persuaded by this argument and, after considering the evidence, the commission also finds this argument unpersuasive. The appeal tribunal decision addresses the matter satisfactorily and the commission sees no need to comment further. The appeal tribunal decision is therefore affirmed.

Finally, in response to the employer's petition, the employee's attorney submitted a letter arguing that the employer's petition was frivolous and requesting the commission issue a decision as such. The attorney further asked for relief flowing from the appeal including, but not limited, to actual attorney's fees and costs. While the commission agrees that the petition states an inaccuracy regarding the hearing representation and fails to make a valid claim for additional hearing, the commission lacks any statutory authority to dismiss the employer's petition as frivolous or to award costs or fees.

cc:
Goodyear Tire & Rubber Co. (Sun Prairie, Wisconsin)
Attorney Peter J. Fox



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uploaded 2005/08/29