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

BARBARA J MULLIGAN, Employee

TANDEM TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003817MD


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 employee timely requested a hearing on an adverse initial determination issued on August 9, 2005 hearing, which was scheduled for October 19, 2005 at 9 a.m. The employee failed to appear at that hearing, and the issue is whether she had good cause therefor. The commission concludes that she did, and so reverses the appeal tribunal decision.

Hearing was scheduled for 9 a.m. on October 19. The administrative law judge assigned to that hearing telephoned the number of the employee's union representative at approximately 9:05, at which time the union representative also received another call. While the union representative was explaining to that person that he would get back to them because he was waiting for a special call, the administrative law judge left a message on the answering machine indicating that he would call the employee again in ten minutes. After the union representative got rid of the first call, he listened to his messages and determined that the administrative law judge had called. The union representative was replaying the message to see whether the administrative law judge had left a number for a return call; apparently while he was doing so, the administrative law judge called again and again left a message, this one indicating that he was dismissing the appeal.

By operation of Wis. Stat. § 108.09(4)(d), a party is entitled to additional hearing, upon missing an originally scheduled hearing, if the party has good cause for having done so. The courts have expressly held that good cause equals excusable neglect, that is, the neglect a reasonably prudent person might have exercised in similar circumstances. In finding no good cause for the employee's failure to appear, the administrative law judge reasoned that the employee's and union representative's failure to have an open line ten minutes after the first call from the administrative law judge could not be excused. The commission disagrees. First, the employee and his union representative cannot be faulted for the coincidence of the union representative's having received an inadvertent telephone call at the same time the administrative law judge was trying to contact the employee at her representative's office. Second, the undisputed evidence indicates that the union representative promptly disposed of that call in order to remain available for the call from the administrative law judge. Third, it is simply a matter of human nature that messages get replayed in order to ensure that nothing was missed. Fourth, the time frame involved, approximately ten minutes, is short enough to have covered the actions of the employee's union representative after he heard the administrative law judge's original message.

The commission therefore finds that the employee had good cause for her failure to have appeared at the scheduled October 19 hearing, within the meaning of Wis. Stat. § 108.09(4)(d).

DECISION

The November 15, 2005 appeal tribunal dismissal decision is reversed. Accordingly, this matter is remanded to the department for hearing and decision on the merits.

Dated and mailed January 25, 2006
mulliba . urr : 105 : 8  PC 712.4

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, as a matter of law the employee and her union representative's actions in this matter constituted at worst the excusable neglect which courts have equated with good cause.

 

cc: Union Rep. Harry Mishloney


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uploaded 2006/02/03