Wis.LIRC UC Decision: Koney, Scott - November 27, 2012 - PC 714.06 - Evidence, Documentary Evidence - PC 715 - Hearing Procedures, Miscellaneous - Whether a document offered as an exhibit should be excluded or not is a matter within the ALJ's discretion; however, an important part of the ALJ's responsibility at hearing is to make a statement for the record noting when documents are presented at hearing that have not been marked as part of the parties' disclosure of exhibits prior to the hearing, and to ascertain whether the opposing party has copies of the documents or is otherwise familiar with them, and whether the opposing party has any objection to them. Although the record shows that at the conclusion of the hearing the ALJ asked the employee if he had any objection to the exhibits and he answered that he did not, it also shows that the ALJ failed to find out whether the employee was in possession of the exhibits and failed to adequately identify these documents for the employee by reading their contents to him before taking testimony about them. Consequently, inclusion of these documents into the evidentiary record under these circumstances constitutes an abuse of discretion; the commission excluded the exhibits from the evidentiary record, as well as any inferences based on these documents - VL 1007.01 - Quit vs. Discharge/layoff - Employee's response to the employer's request was unreasonable and constituted an act inconsistent with the desire to consider the employment relationship.

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

SCOTT A KONEY, Employee

MIDWEST DRILLED FOUNDATIONS
ENGINEEREING, INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12603759MW

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, except that it makes the following modifications:

1. In the third paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete the third and fourth sentences, and insert therefor:

On February 6, 2012, the employee sent an e-mail to the employer asking if he was going to get a call for work. The employer's president sent an e-mail in reply the same day stating that he would call him when he had work. On February 10, 2012 the employer's account executive sent an e-mail to the employee asking if he was available for work in Minnesota on February 27, 2012 (week 9). The employee sent an e-mail in reply the same day, stating:

"I am on the books not working now, just getting my retraining for first aid/CPR/aed, hazmat, msha, cdl, and some crane schooling. I don't have email in caloma."

2. Between the fourth and fifth paragraphs under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, insert the following paragraph:

The employee was called on with due notice by his current employing unit to report to work actually available of at least 16 hours in each of the weeks ending February 11, 2012 (week 6), and March 3, 2012 (week 9), but the employee was unable or unavailable to perform that work. The employee was unavailable for work the week ending February 25, 2012 (week 8) because he was on vacation.

3. In the fifth paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete the first, second and third sentences and insert therefor:

The employee quit his job when he failed to indicate his willingness or ability to return to work in reply to the employer's e-mail of March 4, 2012.

4. In the first sentence of the eleventh paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete $1,089 and replace it with "$1,815".

5. In the twelfth paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete "week 6" and replace it with "week 10".

6. In the thirteenth paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete "week 6" and replace it with "week 10".

7. Between the thirteenth and fourteenth paragraphs under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, insert the following paragraph:

In weeks 6, 8 and 9 of 2012, the employee was not able or available for work within the meaning of Wis. Stat. § 108.04(1).

8. In the fourteenth paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete "$1,089" and replace it with "$1,815".

9. Delete the first sentence of the ALJ's DECISION and substitute therefor: "The department's determination is amended as to weeks of eligibility, and as amended affirmed."

10. In the second sentence of the ALJ's DECISION, delete the phrase "beginning in week 6" and replace it with "in weeks 6, 8 and 9 of 2012, and is ineligible for benefits beginning in week 10 of 2012".

11. In the third sentence of the ALJ's DECISION delete "$1,089" and replace it with "$1,815".

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits in weeks 6, 8 and 9 of 2012, and is ineligible for benefits beginning in week 10 of 2012, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,815 to the Unemployment Reserve Fund.

Dated and Mailed November 27, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

koneysc . umd : 107 : 2

MEMORANDUM OPINION

In his petition for review, the employee asked for a new hearing. He stated that he did not have sufficient time to prepare his case because he was out of the state. He attached a proposed exhibit to his petition, which he argued was proof of his willingness and availability for work, and explained that he did not notice that it was not in his set of exhibits that he disclosed prior to the hearing. He also indicated that he intended to obtain copies of cell phone records that he said would show how frequently he contacted the employer. He also complained that the employer offered a document into evidence that was not disclosed by the employer prior to the hearing, and asked that it be excluded or that he be given an opportunity to look at it and respond to it.

While the commission has the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances. Stahl v. University of Wisconsin Oshkosh, UI Dec. Hearing No. 97402377AP (LIRC Jan. 23, 1998). Here, with respect to the employee's proposed exhibit and his request to present his cell phone records in evidence, the employee made no request before or during the hearing to be allowed to present this additional evidence. He received adequate notice of the fact that the hearing would be the parties' only opportunity to present evidence. The hearing notice referred him to the department's pamphlet, Attending a UI Hearing, which provides the following information about requesting a postponement:

Postponements of scheduled hearings are generally not given unless there has been a showing of exceptional circumstances that justify delaying the proceedings. Requests for postponements cannot be made in writing. You must telephone the hearing office to discuss the particular facts that you believe require a postponement of the case.

The employee made no request for a postponement. There is no indication that the additional evidence which the employee seeks to present was material noncumulative evidence that he discovered since the hearing which he could not have known of before the hearing. Therefore, the additional evidence cannot be considered by the commission as it is not part of the hearing record.

The record in this case, however, does support the employee's complaint about the fact that the employer offered a document into evidence that was not disclosed to the employee or the department prior to hearing. In fact, on review of the entire record, the commission finds that the employer offered four exhibits (Exhibits 3, 5, 6 and 7) that were not disclosed to the employee prior to the hearing, and which the employee did not acknowledge possessing at the time of the hearing. Since the employee was participating in this hearing by telephone, documents should have been received by the hearing office or the opposing party within at least three days prior to the hearing. Wis. Admin. Code, § DWD 140.11(6).

An important part of the ALJ's responsibility at hearing is to make a statement for the record noting when documents are presented at hearing that had not been marked as part of the parties' disclosure of exhibits prior to the hearing, and to ascertain whether the opposing party has copies of the documents or is otherwise familiar with them, and whether the opposing party has any objection to them. This was especially important in this case, since the party presenting the documents, the employer, was at the hearing in person, and the employee was participating by telephone. In this case, the ALJ should have found out whether the employee was in possession of a copy of each document being marked as an exhibit, and if he did not have a copy or was not sure he had a copy, the ALJ should have read the contents of the exhibit to him prior to eliciting testimony about it. Although the record shows that at the conclusion of the hearing the ALJ asked the employee if he had any objection to the exhibits and he answered that he did not, it also shows that the ALJ failed to find out whether the employee was in possession of a copy of Exhibits 3, 5, 6 and 7, and failed to adequately identify these documents for the employee by reading their contents to him before taking testimony about them. Whether a document offered as an exhibit should be excluded or not is a matter within the ALJ's discretion. Iverson v. Trans Met, Inc., UI Dec. Hearing No. 99003698MD (LIRC March 31, 2000). Inclusion of these documents into the evidentiary record under the circumstances of this case was an abuse of the ALJ's discretion. The commission, therefore, has excluded these exhibits from the evidentiary record, and any inferences based on these documents.

Nevertheless, the remaining evidence in this case supports the ALJ's conclusion that the employee was not reasonably diligent in keeping the employer informed of his availability for work. The last email exchange between the parties, on March 4, 2012 (Exhibit 8), is undisputed. The employer sent a note asking whether he was available that week, and giving him a deadline to respond. The employee's response is full of argumentation, but lacks an answer to the question of whether he was available or willing to work. This was not a reasonable response to the employer's request, and constituted an act inconsistent with the desire to consider the employment relationship. Because, however, this incident did not take place until March 4, 2012 (week 10), the ALJ's decision is modified to mark the employee's quitting as occurring in week 10 rather than week 6.

The remaining evidence in this case also supports the conclusion that work was actually available for the employee in weeks 6 and 9, and that his employer gave him due notice of that work, but he was unable or unavailable to perform it. Wis. Stat. § 108.04(1)(a). It also shows that by his own request, he was unavailable for work in the week ending February 25, 2012 (week 8).

cc: Gregg West

koneysc.umd

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