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

CHRISTOPHER L TOWNSEND, Employee

RAWSON METAL FABRICATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09607915MW


PROCEDURAL HISTORY

On June 3, 2009, a department determination was issued finding that in the calendar week ending May 9, 2009 (week 19), the employee was discharged for misconduct connected with his employment. The effect of the determination was explained. Specifically, benefits were not payable through June 27, 2009 and until the employee earned wages equaling at least $2,240 in covered employment. It also explained that wages earned with the employer prior to the discharge could not be used to compute maximum benefits on a later claim.

The employee filed a timely appeal and an in-person hearing was scheduled for 1:30 p.m. on July 15, 2009. The Hearing Notice apprising the employee of the hearing was mailed on June 24, 2009, and warned on the reverse:

This hearing is your only opportunity to present documents and testimony as evidence in this case. Any further review of this case is based upon the record made at this hearing.

The Hearing Notice also explained that postponements would not be granted for the mere convenience of the parties. Also, it explained that the ALJ would wait five minutes for the respondent to appear and if the respondent did not, the hearing would start without the respondent. The hearing notice warned that,

If there are unforeseen delays, you will be expected to wait for this hearing to begin.

Finally, if the party had any questions, the party was advised to contact the hearing office; the notice listed the telephone number for the Milwaukee Hearing Office.

The employee appeared for the hearing in person as did the employer by its owner. The administrative law judge started the hearing and a digital record of this proceeding exists. The digital record reflects that the ALJ introduced the record and explained the hearing procedures to the employee and the owner of the business. The employee did not question the hearing procedures or express a need to leave the hearing until approximately 11 minutes into the hearing when the administrative law judge asked the employee if the employee was speaking on a telephone. In response, the employee explained that he had to leave; he had a criminal hearing in the safety building and that he thought the unemployment hearing would just last a few minutes. Based upon the surprising and unusual circumstances, the administrative law judge explained that he would dismiss the employee's appeal based upon his non-participation. The employee left the hearing room. Thereafter the employer provided additional testimony; the employee did not have an opportunity to cross-examine the employer's witness. The ALJ closed the hearing, after receiving an exhibit from the employer into evidence.

On July 15, 2009 the administrative law judge issued a withdrawal decision. Within five days of the issuance of the withdrawal decision, the employee submitted a letter requesting another opportunity to participate in a hearing, indicating that he had a criminal case on the same day and time as the unemployment insurance hearing. On July 30, 2009, the administrative law judge set aside the July 15, 2009 withdrawal decision for "further consideration."

While departmental records reflect that hearing number 09607915MW was assigned with a hearing to be scheduled on August 6, 2009, no actual hearing was held on that day. On August 12, 2009, the hearing file reflects the following notation, based upon a contact from the employee wanting to talk to someone regarding his retraction of withdrawal,

8/13/09 11:40 AM left detailed message explaining he'll be getting another hearing to explain what happened on 7/15/09. He's just waiting to get new notice.

No hearing was held and, on August 28, 2009, the administrative law judge issued an appeal tribunal decision with a September 18, 2009 appeal deadline. Specifically, the decision found that a timely retraction of withdrawal was received but the appellant failed to establish good cause for that request, within the meaning of DWD 140.05 of the Wisconsin Administrative Code.

On September 2, 2009, the employee petitioned the August 28, 2009 appeal tribunal decision requesting the opportunity to present evidence regarding his discharge and his eligibility for unemployment insurance benefits. The letter explained that the employer's owner advised him that he would not appear at the hearing and, as such, even though he had a criminal matter scheduled to start at the exact same time, he believed that the unemployment insurance matter would end in just a few minutes and he would be able to participate in his criminal matter unencumbered.

Typically, administrative law judges deny requests to retract withdrawals by letter pursuant to Wis. Admin. Code § DWD 140.05(4) under the premise that withdrawals are not appealable documents.

Since Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP & 03401010AP (LIRC March 4, 2004), the commission has repeatedly found to the contrary that such withdrawals are appealable and any petitions for review that are late are late for a reason beyond the parties' control.(1)

Based upon the foregoing and the fact that Wis. Admin. Code DWD 140.05(4) contemplates that decision as to whether a retraction is with good cause is reached without an appeal hearing, the commission finds that the ALJ's procedure of issuing a decision without a hearing on August 28, 2009 was appropriate and without error.(2)

As such, the commission must review the ALJ's August 28, 2009 decision.

The digital record of the July 15, 2009 proceeding reflects that the employee initially appeared for the hearing. When he advised the ALJ that he had to leave, the ALJ explained that he would be dismissing the employee's case. The employee asked if he could appeal that and the ALJ explained that the employee could send a letter, but "walking out of the hearing is not going to be very good."

Wis. Stat. § 108.09(4)(a) provides

Opportunity to be heard. Unless the request for a hearing is withdrawn, each of the parties shall be afforded reasonable opportunity to be heard, and the claim thus disputed shall be promptly decided by such appeal tribunal as the department designates or establishes for this purpose.

Wis. Admin. Code § DWD 140.05(1) provides that

(1) An appellant may withdraw its appeal at any time before the issuance of a decision on the merits by notifying the hearing office or by choosing not to continue to participate in a hearing. The administrative law judge shall issue a withdrawal decision after determining that an appeal has been withdrawn.

In this case, the employee decided not to participate further in the hearing. Given the language of Wis. Stat. § 108.09(4)(a), the ALJ's approach as treating this as a withdrawal situation was reasonable given the statutory language which addresses a withdrawal in paragraph (a) prior to paragraphs (d) and (e) dealing with a party's failure to appear.

In reviewing whether a retraction request should be granted, the commission uses the standard set forth in Wis. Admin. Code DWD 140.05(2).(3) It provides that a request to retract a withdrawal and reinstate an appeal:

...shall be in writing and state a reason for the request. 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.

The employee opted to leave the hearing in order to attend a criminal trial scheduled to begin at the exact same time as the unemployment insurance hearing. The employer had the right to appear at the hearing and the employee's reliance on such statement from the employer as a reason to not seek a postponement is not the act of a reasonably prudent person who has two proceedings scheduled to begin at the exact same time at two different locations. The remedy was simple, the employee could have contacted the hearing office to seek a postponement.

The commission therefore finds that:

(1) The employee's request for a hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and

(2) The employee did not file a request to retract his withdrawal that met the requirements of Wis. Admin. Code § DWD 140.05(2).

DECISION

The withdrawal decision of the administrative law judge is affirmed. Accordingly, the request for hearing will not be reinstated, no additional hearing will be held and the initial determination shall remain in effect.

Dated and mailed October 2, 2009
townsch . upr : 150 : 1   PC 749 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner



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Footnotes:

(1)( Back ) See Young v. Milwaukee Public School and Food Team Suite 730, UI Dec. Hearing Nos. 04611502MW, 04611503MW, 04611504MW and 04611505MW (LIRC September 2, 2005); Wambold v. Apple Steel Rule Die Co. Inc., UI Dec. Hearing No. 05605371MW (LIRC November 23, 2005): Brewer v. Radtke Contractors Inc., UI Dec. Hearing No. 06400442AP (LIRC June 21, 2006): Behnke v. Royal Pets Inc., UI Dec. Hearing No. 04005276MD (LIRC October 31, 2006); Taylor v. Pioneer Metal Finishing Corp., UI Dec. Hearing No. 07400980GB (LIRC July 23, 2007); Gilson v. Human Insurance Co., UI Dec. Hearing No. 07401823GB (LIRC October 26, 2007); Giesen v. Schutt Industries of Clintonville WI Inc., UI Dec. Hearing No. 07402172AP (LIRC January 18, 2008); Luckett v. Independence First Inc., Hearing No. 06004487MD, (LIRC February 8, 2008); Vandermale v. Citation Berlin, UI Dec. Hearing No. 08602896MW (LIRC July 31, 2008) and Firkus v. Colligans Bakery Inc., UI Dec. Hearing No. 09000062WR (LIRC September 14, 2009).

(2)( Back ) While the employee may have been misadvised by hearing office staff as to whether an additional hearing regarding the retraction request was to be scheduled, the commission will not grant him a hearing where none was authorized by the applicable statute or code provisions.

(3)( Back ) See Glasschroeder and footnote 1. 

 


uploaded 2009/10/23