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

KRAIG R JOHNSTONE, Employee

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05201781EC


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 request for hearing is dismissed. The initial determination remains in effect.

Dated and mailed December 23, 2005
johnskr . usd : 150 : 1  PC 712.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The hearing in this matter was scheduled by telephone on Wednesday, October 19, 2005 at 1:30 p.m. The employer appeared by telephone and the employee appeared by cellular telephone. Prior to taking testimony, when the ALJ questioned the employee as to whether he had his exhibit packet with him for the hearing, the employee indicated that he did not have it with him. The parties disputed the nature of the separation and, consequently, the ALJ questioned the employer's witness first. The employer presented evidence that the employee voluntarily terminated his employment after an altercation with his supervisor. The employee had the opportunity to cross-examine the employer's witness but asked no questions. The employee's position was that he had been discharged. He started to provide testimony and, approximately 14 minutes into the hearing, his telephone connection ended. The digital record of the hearing does not reflect a dial tone.

The ALJ made two subsequent attempts to contact the employee. In the first attempt, after ringing several times, the phone was "picked up" and all that could be heard was loud music playing. There was no outgoing message. At this point, the ALJ stated that if the employee could hear him and was unable to be reached, the ALJ would dismiss his appeal. The ALJ hung up and tried a second time with the same result. On the record, the ALJ informed the employer that he was dismissing the employee's appeal.

Departmental records reflect that at 4:00 p.m. that day, October 19, 2005, the employee telephoned the hearing office indicating that he lost reception and did not have a telephone number to immediately call the hearing office back. As a note, had he had the exhibit packet or hearing notice with him, it listed the hearing office's telephone number. The employee was advised to write a letter explaining the failure to appear and requesting that the hearing be scheduled.

The employee delayed sending such a letter until November 8 or 9, 2005; the envelope postmark is difficult to read. While the letter addresses the failure to appear, namely that the employee's cellular telephone "went dead", the letter was not received by the department until November 10, 2005, one day after the 21st day, November 9, 2005.

Had the letter been received by the 9th, the ALJ would have had to treat it as a good cause letter, holding a hearing on the failure to appear. However, since it was not received until the 10th, the letter is a timely petition for review by the commission, see Wis. Stat. § 108.09(4)(d)3, and the commission's review is limited to whether the dismissal of the employee's appeal was proper under the circumstances.

The commission has dealt with an appellant's unavailability after a hearing was started in differing ways. In Vogel v. Albert Trostel Packings Ltd., UI Dec. Hearing No. 91004482JV (LIRC November 22, 1991), the commission affirmed an appeal tribunal dismissal decision where the employee failed to present testimony subject to cross-examination and choose to leave the hearing room instead. A similar decision was reached in Landerman, UI Dec. Hearing No. 03604709MW (LIRC January 21, 2004). Yet, in Keegan v. Remedy Intelligent Staffing, Inc., UI Dec. Hearing No. 00003002MD (LIRC September 11, 2000), the commission treated an employee's leaving during a hearing not as a failure to appear but as a hearing in which the employee was entitled to a decision on the merits of the initial determination. What distinguishes the Keegan case is that the employer/respondent did not appear, so no cross would have occurred. The employee also gave some testimony before leaving. The commission used the employee's testimony in reaching a decision on whether the employee was self-employed and was able and available for work.

Following a review of the record in this matter the commission affirms the ALJ's dismissal as proper in this matter because the initial determination was adverse to the employee, finding that he quit and that his quitting was not within any exceptions and while the employee did present some testimony, the only testimony that may be used was that of the employer because it was subject to cross-examination. The employer's testimony supports the quit no exception determination. Additionally, the manner in which the employee's cellular telephone was "dead" is suspicious, it is odd that when the ALJ tried to contact the employee two times after the connection was severed, there was only loud music with no outgoing message that the "cellular number cannot be reached" or beeping for a message to be left. Finally, the employee failed to immediately contact the hearing office when disconnected.

cc: Wal-Mart (Superior, Wisconsin)



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