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


ROBERT M GONDEK, Employe

MURPHY OIL USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99201060SU


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 employe is eligible for benefits as of week 27 of 1999, if otherwise qualified.

Dated and mailed February 17, 2000
gondero.usd : 178 : 5    PC 714.03 PC 714.06 PC 715

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that it had good cause for suspending the employe's employment. It further argues that the ALJ erred by not considering the employe's statement to the department in her decision. In that statement, the employe describes the incident. However, the statement is not in the hearing record and the commission is limited to that record in its review. No one present moved for its admission and the ALJ did not admit it, so that fact that it was marked prior to the hearing does not make it part of the record. The employer here argues that it relied on the department's marking the statement as an exhibit prior to the hearing and further relied upon it to prove its case. It asserts that the decision should be reversed on that basis.

The commission rejects the employer's arguments. The employer did not appear at the hearing. This was a deliberate choice. The hearing was scheduled for September 7. In a letter dated September 2, the employer notified the department of its intention not to appear for the hearing and to rely upon the department's initial investigation and the documents it had previously submitted. The hearing office responded reminding the employer that its documents would not come in without someone to identify them. It further stated that documents will not necessarily be admitted into the record simply because they are in the file. The hearing information sent to the parties also stressed the importance of having witnesses present. Nevertheless the employer did not appear.

The employer has not demonstrated any reason why it could not have appeared at the original hearing. It was the employer's burden to demonstrate good cause for the suspension. While the ALJ has the obligation under Wisconsin Administrative Code DWD 140.15 (2) to develop the facts and may call and examine any witness she deems necessary, it is not her duty to build the employer's case for it. The ALJ did not question the employe in this instance about the facts of the incident which led to his suspension. The employer was represented by an attorney and counseled by the hearing office against failing to appear. Since the employer abdicated its responsibilities it this case, it bears the responsibility for its loss. The commission therefore affirms the appeal tribunal decision.

cc: ATTORNEY RICHARD S GONDIK JR

SALLY JOHNSON
MURPHY OIL USA INC

ATTORNEY JOSEPH J ROBY JR
JOHNSON KILLEN THIBODEAU & SEILER PA


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