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

CARL F CHANG, Employee

MARTEN TRANSPORT LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03008179MD


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 employee is ineligible for benefits beginning in week 46 of 2003, and until he is again able and available for suitable work.

Dated and mailed June 2, 2004
changca . usd : 115 : 1    PC 713   PC 714.01  PC 714.06  PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee worked as an over-the-road truck driver for three years for the employer, a trucking company.

There were two issues, and two hearings, relating to the employee's claim. The first was a misconduct issue, which was resolved  in the employee's favor. The. second is the able and available issue under consideration here.

The employee was discharged on November 10, 2003. The employee admits that he was unable to work that week (week 46).

At hearing, the employee testified that the minimum wage he would accept in searching for work was $1,000 to 1,200 per week, and that he was "used to making $38,000 per year." Although these weekly and yearly amounts would be incompatible if the employee were employed continuously during the year, remand for purposes of clarification is not merited since the employee was asked a very straightforward question and gave a very specific answer. In addition, in his petition, he does not indicate that he misunderstood the question or misspoke when answering it, and, in fact, does not mention this testimony at all even though this is the evidence relied upon by the administrative law judge in denying his claim.

Based on this testimony, and on the data in the labor market report generated after the date of hearing, the administrative law judge concluded that the employee's salary restrictions limited his availability to less than 50% of suitable work in his labor market.

The commission recognizes that a due process issue is created by the administrative law judge's reliance upon a labor market report which was not identified in the hearing record and which apparently was not shared with the parties prior to the issuance of the appeal tribunal decision. See, Bohannon v. Cornwell Personnel Associates, Ltd., UI Hearing No. 03607072MW (LIRC May 6, 2004). Although it would have been a better practice for the administrative law judge to have made the labor market report a part of the hearing record or to otherwise provide the parties an opportunity to object to it before she issued her decision, her failure to do so, in the absence of objection from the employee in his petition, would not provide sufficient justification for reversal or remand under the circumstances present here. See, Morgan v. Eckert Door Co., Inc., UI Hearing No. 98602750MW (LIRC Aug. 4, 1998) (commission remanded case for new hearing where employer objected in petition for commission review to labor market report which the AU did not make, a part of hearing record but instead took administrative notice of in his decision); Mills v. Emmpak Foods, Inc., UI Hearing No. 03605739MW (LIRC Jan. 8, 2004) (remand not ordered in absence of objection from employer petitioner).



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