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


MICHAEL H PFOTENHAUER, Employe

PHILLIP FUNERAL HOMES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00401919AP


On May 3, 2000, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing for immediate eligibility for unemployment insurance. The employe filed a timely request for hearing on the adverse determination, and hearing was scheduled for June 13, 2000. The employer failed to appear at that hearing. Later on that day, a department administrative law judge issued an appeal tribunal decision holding that the employe had been discharged, not for misconduct for unemployment insurance purposes. The employer filed a timely petition for review, asserting cause for its failure to have appeared at the June 13, 2000 hearing. Hearing on that issue was held on July 18, 2000 in Appleton, Wisconsin before a department administrative law judge. On July 20, 2000, the administrative law judge issued a decision holding that the employer did not have good cause for its failure to have appeared at the June 13 hearing. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department's determination suspended benefits. The employe appealed timely and a hearing was scheduled to be conducted by telephone on June 13, 2000 at 2:45 p.m. Prior to the hearing the employer/respondent failed to provide a telephone number to the hearing office. Accordingly, only the appellant appeared. An appeal tribunal decision was issued and mailed on June 13, 2000, which reversed the initial determination and allowed benefits. Within twenty-one days the employer/respondent filed a request for a rehearing on the merits. The appeal tribunal decision was then set aside for consideration of that request.

Notice of hearing was mailed to both parties on June 2, 2000 and no telephone number was listed for the employer on the notice. Under the "Important Messages" section the parties are instructed to immediately contact the hearing office if the number listed is incorrect or missing. The employer did not provide a telephone number prior to the hearing. Therefore, the hearing proceeded without the employer. After the hearing was concluded the employer contacted the hearing office to question why the employer had not been contacted.

The issue to be decided is whether the employer had good cause for the failure to appear at the hearing scheduled for June 13, 2000. The commission concludes that it did, and so reverses the July 20, 2000 appeal tribunal decision.

Section 108.09(4)(e) of the Wisconsin statutes provides, in part, as follows:

1.  If the respondent fails to appear at a hearing held under this section but the appellant is present, and due notice of the hearing was mailed to the respondent's last-known address, the appeal tribunal shall hold the hearing and shall issue a decision under sub. (3)(b) unless sub. 2. applies.

3. . . . If the respondent delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision unfavorable to the respondent is mailed under subd. 1., the appeal tribunal may set aside the original decision and the department may schedule a hearing concerning whether there was good cause for the respondent's nonappearance. . . . If, after hearing testimony, the appeal tribunal finds that the respondent's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and, if necessary, reinstating the decision which was set aside. . . .

Chapter DWD 140.11(4) of the Wisconsin Administrative Code provides as follows:

(4)  If the respondent is scheduled to appear by telephone, the administrative law judge may proceed with the hearing if, within 5 minutes after the starting time for the hearing, neither the respondent nor the respondent's authorized representative can be reached at the respondent's telephone number of record or the telephone number furnished to the hearing office. The administrative law judge may refuse to allow a respondent to testify if the administrative law judge is unable to reach the respondent or the respondent's authorized representative and neither the respondent nor the respondent's authorized representative have contacted the hearing office within 15 minutes after the starting time for the hearing. The respondent shall be considered to have failed to appear for the hearing if the administrative law judge so refuses. The respondent may appeal such a finding under this chapter.

There is no question but that the employer did not follow the directions on the hearing notice to the effect that it was to contact the hearing office if its telephone number on the notice were either missing or incorrect. The instructions on the hearing notice cannot supercede the express language of the administrative code, however. That language allows the administrative law judge to proceed only if, within 5 minutes after the starting time for the hearing, the administrative law judge has been unable to reach the respondent at the respondent's telephone number of record or the telephone number furnished to the hearing office. At a minimum, this language requires the administrative law judge to attempt to reach the respondent at the respondent's telephone number of record, if the respondent has not furnished a telephone number to the hearing office. Had the administrative law judge done so, she would have reached the respondent who, along with its witnesses, was waiting by its telephone. Given this failure by the administrative law judge, the commission must conclude that the employer had good cause for its failure to have appeared at the June 13, 2000 hearing in this case.

DECISION

The July 20, 2000 appeal tribunal decision in this case is reversed. The June 13, 2000 appeal tribunal decision, as reinstated by the July 20, decision, is set aside. This matter is remanded to the department, finally, for de novo (new) hearing and decision on the merits.

Dated and mailed September 21, 2000
pfotemi.urr : 105 : 1  PC 712.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission believes the administrative law judge's failure to contact the employer at its telephone number of record as a matter of law violated Wis. Admin. Code § DWD 140.11(4) and, as such, gave the employer good cause for its failure to appear.

cc: ATTORNEY BASIL J. BUCHKO
RECKA & JOANNES


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