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

CHARLES T CALVERT, Employee

GOODYEAR TIRE & RUBBER CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002060MD


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 employee's petition is accepted for review. The decision of the administrative law judge is affirmed. Accordingly, the employee's request for rehearing on the merits is denied. The appeal tribunal decision issued on April 20, 2006, remains in effect.

Dated and mailed November 2, 2006
calvech . usd : 115 : 8   PC 712.4

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


Late petition

An appeal tribunal decision denying the employee's request for further hearing was issued on June 16, 2006, and stated an appeal deadline of July 7, 2006. The employee's petition was postmarked on July 8, 2006, and received by the department on July 10, 2006.

The employee explained to the commission that his petition was actually postmarked and sent on July 7, 2006. As a result, the commission remanded this matter to the department for hearing to determine whether:

the employee's petition for commission review was late for a reason beyond his control, and specifically, whether the employee placed his petition in the postal stream on July 7, 2006, in a manner which would have reasonably assured its postmark that day.

At the hearing, the employee testified that, the evening of July 7, 2006, at the post office on Milwaukee Street in Madison, he purchased a dated stamp, placed this dated stamp on the envelope containing his petition, and placed the petition in the night drop box. The employee further testified that there was no indication on the night drop box when mail deposited in that box would be postmarked.

The fact that the employee affixed a dated stamp to the envelope containing his petition does not establish that his petition was postmarked on that date. The postmark on the envelope clearly indicates instead that it was postmarked the following day.

However, the employee credibly testified that he mailed the petition in Madison, but the envelope bears a Milwaukee postmark.

The commission has previously held that, where a petitioner contends that his petition was placed in the postal stream on the day prior to the date of postmark, and where the postmark indicates a different town then that from which it was mailed, the petition will be accepted. See, Lang v. General Business Services, Inc., UI Hearing No. 98003796MD (LIRC Feb. 16, 1999); Blochowiak v. Caap, Inc., UI Hearing No. 91609706MW (LIRC Dec. 4, 1992). The commission's rationale is that a post office's decision to postmark mail at a different town from where it was deposited is not a procedure of which a reasonable person can be expected to be aware.

Applying this principle here, the employee's petition would be deemed to have been postmarked on July 7, 2006, which would render it timely filed. 
 

Good cause issue

The remaining issue then relates to the employee's failure to appear at the properly noticed April 19, 2006, hearing on the merits of his claim. This hearing was scheduled to commence at 9:00 a.m.

Hearing on the good cause issue was conducted on June 16, 2006. At this hearing, the employee testified that he received the hearing notice, and, since he had previous plans to be in Myrtle Beach, South Carolina, on April 19, contacted the hearing office and requested a telephone hearing. The hearing office granted this request, and the employee provided his cell phone number as the number at which he should be reached on April 19.

The employee was scheduled to compete in a race (all-terrain vehicles on ice) in San Juan, Puerto Rico, some time after April 19. He was present in Myrtle Beach on and before April 19 to prepare for that race. The race organizers paid the employee's travel and hotel costs associated with preparing for, and participating in, the race. The employee was not a member of the race organizer's staff.

The employee was originally scheduled to fly from Myrtle Beach to San Juan, Puerto Rico, on April 20. The race organizer changed this schedule, and the employee flew from Myrtle Beach to Charlotte, and from Charlotte to San Juan, on April 19. One of the employee's flights was in the air at the time the hearing was scheduled to commence. The administrative law judge called the employee's cell phone at that time and left a message when the employee did not answer. The employee was unable to receive the call while he was in flight. By the time the employee returned the message, office hours had ended and no one answered his call.

The employee did not contact the hearing office once his flight plans had changed because he had not taken the hearing notice with him and did not know how to get in touch with the hearing office as a result.

The standard for failing to appear at a hearing is "good cause." This is, a party who misses a hearing is entitled to further hearing if the party establishes good cause for its initial failure to appear. The courts have defined this standard to be "excusable neglect," that is, the neglect a reasonably prudent person might commit in similar circumstances. Kautzman v. Abraham Isaac & Jacob, UI Dec. Hearing No. 98606107MW (LIRC Dec. 23, 1998).

The employee here failed to show good cause. It was not reasonably prudent of the employee to agree to participate in the hearing by phone while he was in another state, without assuring, by either taking the hearing notice or the hearing office phone number with him, that he would be able to contact the hearing office if some unforeseen event occurred.

cc: Goodyear Auto Service Center - Madison, WI



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uploaded 2006/11/06