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


LINDA BRUCHERT, Employee

HEALTH STAFF HEALTH CARE PROFESSIONALS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601667MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On January 7, 2000, the department issued an initial determination unfavorable to the employer. The last day to file a timely appeal was January 21. The initial determination was mailed to the employer at its last address of record, on Lincoln Avenue in Milwaukee. However, the employer was no longer at this address, having relocated to an address on Mayfair Road in Wauwatosa, and the determination had to be forwarded to the employer's new address by the United States Postal Service (hereinafter "Postal Service.") On February 16 the employer filed an appeal, which was mailed from the employer's corporate office in Oak Brook, IL. The employer did not provide the department with its new mailing address at this time.

On March 6, 2000, the department issued a notice for a March 13 hearing on the question of the timeliness of the employer's appeal. The hearing notice was sent to the employer at the Lincoln Avenue address, still the last address on record with the department. The employer failed to appear at the hearing, and the issue to be resolved is whether its failure to appear was with good cause.

The employer explained that it did not appear at the hearing because it did not receive the hearing notice on time. At a hearing convened to address the employer's failure to appear, the employer's witness, Connie Gray, testified that the hearing notice was received by the employer at its Milwaukee office on April 11, then mailed to the employer's Oak Park, IL office. Ms. Gray, who works out of the Illinois office, explained that there was no manager at the Milwaukee office at the time.

The employer's evidence does not establish that its failure to attend the hearing was with good cause. The employer failed to notify the department of its new mailing address, in spite of the fact that it was on notice the department was still sending correspondence to the Lincoln Avenue address. Moreover, the evidence indicates that the employer had a forwarding order on file with the Postal Service, and the commission sees no reason to believe that the hearing notice was not forwarded in time for the employer to appear at the hearing. Although Ms. Gray asserted that the hearing notice was received by the employer at the Milwaukee office on April 11, it seems unlikely that it would take the Postal Service over a month to forward an item within the Milwaukee area. Ms. Gray had no firsthand knowledge as to when the document arrived at the Milwaukee office, but her testimony that there was no manager at that location suggests that the delay was the result of disorganization on the employer's part rather than postal error.

The commission, therefore, finds that the employer failed to appear at the hearing held on March 13, 2000, and that such failure was without good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employer's request for a hearing is dismissed.

Dated and mailed October 16, 2000
bruchli.urr : 164 : 5  PC 712.1

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon any differing credibility assessment, but is as a matter of law.

cc: HEALTH STAFF HEALTH CARE

ATTORNEY JON DEITRICH
ADELMAN & HYNES SC


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