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

JERRY F PORTER, Employee

CPC SPECIAL LOGISTICS WEST LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08005094MD


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 eligible for benefits beginning in week 42 of 2008, if otherwise qualified.

Dated and mailed February 26, 2009
porteje . usd : 115 : 1   PC 713   MC 600

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


Procedural issue

The department determination finding misconduct was dated and mailed on November 21, 2008, to the employee and to TALX as the employer's representative. This determination stated on its reverse side:

IMMEDIATELY START PREPARING FOR HEARING SINCE HEARING NOTICES MAY BE MAILED ONLY 6 DAYS PRIOR TO THE SCHEDULED HEARING. Collect documents, evidence, and identify witness(es) that you need for the hearing.... (emphasis in original)

The employee filed a timely appeal of this determination.

The notice of hearing was mailed to the employee, and to TALX as the employer's representative, on Monday, December 22, 2008, for a hearing to be held on Monday, December 29, 2008. A copy of this notice was mailed to the employer. The notice mailed to TALX stated that, "Your local representative and witness(es) must appear in person."

This mailing occurred at the beginning of Christmas week, i.e., Christmas Eve was on Wednesday, and Christmas Day on Thursday.

The hearing was held on December 29. The employer appeared and participated, did not reference TALX during the hearing, did not indicate it had not had sufficient time to prepare for hearing, and did not request a postponement or the opportunity for further hearing.

In its timely petition for commission review of the ATD issued as a result of the hearing, TALX states as follows, as relevant here:

According to our records we, TALX, did not receive the hearing notice until the day of the hearing, which did not give us the opportunity to prepare the employer for the hearing. Due to circumstances beyond our control we are requesting a new hearing to give testimony in this matter.

In the present matter, unlike the circumstances underlying the commission's recent decision in Flor v. Personnel Connection, UI Hearing No. 08402948AP (LIRC Feb. 6, 2009), it is a party's representative, not the party, who received the hearing notice on the date of hearing. Here, the employer appeared at the hearing, presented evidence, and did not mention that it had not had adequate advance notice of the hearing.

Instead, it is TALX arguing that receiving the notice on the day of hearing "did not give us the opportunity to prepare the employer for the hearing." However, as emphasized in the determination, this preparation should have begun in November 2008. Moreover, the file does not indicate, nor does TALX assert, that it intended to represent the employer at the hearing. Finally, neither TALX nor the employer specify, nor is it obvious, what additional testimony would be offered if opportunity for further hearing were provided.

As a result, even though mailing a hearing notice seven days before hearing during a holiday week is not optimal, it does not justify further hearing here. TALX had more than six weeks to prepare the employer for hearing and has not indicated it intended to participate in the hearing; and the employer appeared for the hearing, participated fully, and did not indicate during the course of the hearing that it was prejudiced in any way by the short hearing notice.

Misconduct

The employee worked 19 years as a truck driver for the employer. He was discharged for allegedly falsifying his travel log for October 8, 2008.

The employee disputes this falsification allegation.

The employer's witness, who did not work for the employer during October 2008, had no first hand knowledge of the circumstances surrounding the alleged falsification, relying instead in his testimony upon written records maintained by supervisor John Heitland (Heitland), who did not testify. In fact, Heitland was discharged by the employer for falsifying records, which further undermines the reliability of records he had maintained for his subordinates, including the employee.

In the absence of competent evidence to support the employer's allegation, the employer failed to sustain its burden to prove misconduct.

cc: CPC Logistics (Sun Prairie, Wisconsin)


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