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

PATRICIA A UNGER, Employee

THE COMPLETE PACKAGE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401264SH


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 the adverse May 10, 2006 initial determination, and hearing was scheduled for June 19, 2006. The employee did not appear at the hearing personally, but instead by her designated representative, her husband, and the issue is whether the employee failed to appear at the hearing, within the meaning of Wis. Stat. § 108.09(4). Under the narrow circumstances of this case, the commission concludes that she did not fail to appear, and so reverses the appeal tribunal decision.

The underlying substantive issue in this case is the alleged ownership interest of the employee and her husband in the employer corporation, under Wis. Stat. § 108.04(1)(g). The employee's statement to the Department of Workforce Development, during department investigation of her claim, was given by her husband. In that statement, he indicated that he had a significant ownership interest in the corporation and that he was the president of the corporation as well. The employee's request for hearing was signed by both her and her husband and, in the request, the employee designated her husband as her representative. From these factors, it must be concluded that the employee's husband is competent to give evidence on the issue in this case; the employee thus cannot be held to have failed to appear at the scheduled hearing.

The commission therefore finds that the employee did not fail to appear at hearing, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The appeal tribunal dismissal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed August 18, 2006
ungerpa . urr : 105 : 2   PC 712  ET 491

/s/ 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 case. It must be apparent that, since no hearing was held, the commission's reversal is as a matter of law and is not based upon a differing credibility assessment from that made by the administrative law judge. In addition to the factors stated in the decision, the commission believes it is appropriate to note Roepke v. Stoelting, Inc., UI Dec. Hearing No. 92001543FL (LIRC May 13, 1992). In that case, and even without written authorization from the employee, the commission allowed the employee's spouse to appear on behalf of and be a competent witness for, the employee. This was because the issue in the case was the proper allocation of the employee's self-employment income and it was the employee's spouse who performed the family's bookkeeping. The employee's spouse thus was a competent witness and could in fact appear in lieu of the employee in that case. So it is here.


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uploaded 2006/08/23