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

RICHARD J. STORTZ, Employee

INTL PAPER CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08004696AP



PROCEDURAL HISTORY

The employee worked 36 years for the employer, a paper company, was discharged and filed a claim for unemployment insurance benefits. On November 4, 2008, an initial determination was issued finding that in week 41 of 2008, the employee was discharged for misconduct connected with his employment. In particular, the determination found,

The employee was discharged for sleeping on the job. The employee admits to the act that resulted in his immediate discharge. The evidence presented shows that the employee's actions demonstrated a substantial and willful disregard of the employer's interests.

The employee timely appealed the determination, citing his long service with the employer and the difficulties he was having sleeping at the time of the discharge.

On November 21, 2008, a hearing notice was sent apprising the parties of a telephone hearing to be held Tuesday, December 2, 2008. The employee also telephoned the hearing office seeking a withdrawal of his appeal and, that same day, an appeal tribunal decision was issued, withdrawing the request for hearing and indicating that the initial determination remained in effect.

On November 28, 2008, the employee faxed a letter seeking retraction of his withdrawal request, citing his rehire with the employer. Specifically, he mentioned that he had hoped that he would receive back pay upon rehire with the employer and, because he had been recently rehired, he did not wish to anger his employer by being absent for the hearing.

On December 9, 2008, the Administrative Law Judge (ALJ) issued a letter to the employee finding that his letter failed to establish good cause for his retraction within the meaning of Wis. Admin. Code § 140.05(2). Specifically, that provision provides:

. . . The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.

On February 19, 2008, the employee mailed a letter seeking a new hearing on the grounds of his recent diagnosis of sleep apnea and sleep deprivation. The letter was forwarded to the Labor and Industry Review Commission (commission) for review.

The issue before the commission is how to treat the letter and what action, if any, the commission should take.

Wis. Stat. § 108.09(6) provides, as follows and with emphasis added:

Commission Review. (a) The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner. If the petition is not dismissed the commission may take action under par. (d).

(b) Within 28 days after a decision of the commission is mailed to the parties, the commission may, on its own motion, set aside the decision for further consideration and take action under par. (d).

(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within 2 years from the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d). The commission may set aside any final determination of the department or any decision of an appeal tribunal or of the commission at any time, and take action under par. (d), if the benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the commission is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.

(d) In any case before the commission for action under this subsection, the commission may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence as to such matters as it may direct, or it may remand the matter to the department for further proceedings.

While the commission could treat the employee's letter as a renewed retraction request, given the employee's claim, the most efficient approach is whether the commission should act under Wis. Stat. § 108.09(6)(c) on the grounds of newly discovered evidence.

In Naden v. Johnson, 61 Wis. 2d. 384, 212 N.W. 2d 585 (1973), the following criteria were established for "newly discovered evidence:"

1. the evidence came to the moving party's knowledge after the hearing,
2. the moving party was not negligent in failing to discover it for the hearing originally,
3. the evidence is material,
4. the evidence is not merely cumulative to what was already introduced at the hearing, and
5. it is reasonably probable that a different result would be reached on a new hearing, given this evidence.

The commission finds that the employee's claimed diagnosis of sleep apnea and deprivation satisfies the above criteria. Additionally, given the statements made in the letters from the employee, it appears that he has been rehired by the employer. (1)

The commission therefore finds that, based upon the employee's offer of newly discovered evidence, the commission takes jurisdiction of this matter pursuant to Wis. Stat. § 108.09 (6)(c), and acts under Wis. Stat. § 108.09 (6)(d) in setting aside the withdrawal decision dated November 21, 2008 and remands the matter for a new hearing on the merits.

DECISION

The decision of the administrative law judge, dated November 21, 2008 is set aside and a hearing on the merits will be scheduled as soon as possible. Prior to the hearing date, the employee should be mailed a certified medical form for his physician to complete in lieu of in person testimony. Additionally, the issue of a disciplinary suspension should be added to the hearing notice.

Dated and mailed March 27, 2009
stortri : 150 PC 740

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

cc: INTL PAPER CO, FOND DU LAC, WI 54935-0000



 

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) If the rehire was under specific circumstances, the employee's period of unemployment may be analyzed as a period of disciplinary suspension under Wis. Stat. §108.04(6) and eligibility would depend upon whether the disciplinary suspension was for good cause. See Kruse v. Patrick Cudahy Inc., UI Dec. Hearing No. 08602480MW (LIRC August 20, 2008), Burt v. Appleton Electric LLC., UI Dec. Hearing No. 06604156MW (LIRC December 19, 2007), Hall v. Milwaukee Transport Services, Inc., UI Dec. Hearing No. 95603339MW (LIRC Jan. 11, 1996), aff'd sub nom. Milwaukee Transport Services Inc. v. LIRC and Cornelius Hall, Case No. 96 CV 000989 (Milw. Co. Cir. Ct., Aug. 21, 1996).

 


uploaded 2009/05/04