JEFFORD PEACE, Complainant

MILWAUKEE PLATING COMPANY, Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on April 2, 1991. Complainant filed a timely petition for review by the Commission. Respondent submitted written arguments in support of its position.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

The decision of the Administrative Law Judge (copy attached) is modified as follows:

In the statement under ORDER, delete "That" and substitute therefor:

"The decision in this matter, dated March 28, 1991, is amended and, as amended, is affirmed. Accordingly,".

As modified, the decision of the Administrative Law Judge shall stand as the FINAL ORDER herein.

Dated and mailed August 21, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. meier, Commissioner

The Complainant contends that as a matter of fairness Respondent's exhibits should be stricken from the record. At the beginning of the hearing, during discussion of preliminary matters, Complainant mentioned that the evening before the hearing he, personally, had served subpoenas on witnesses. The witnesses did not appear for the hearing and he conceded he had no returns of service. At this juncture Respondent's attorney stated that as Respondent had not been served with a witness list, if any witnesses who had been subpoenaed by Complainant had appeared at the hearing, they would not be eligible to testify. The ALJ then ruled that the hearing would proceed and not be delayed. Complainant made no objection for the record and proceeded to testify. Respondent offered four exhibits, each of which Complainant identified. At no time during the hearing did he make any objections to their being received into evidence.

In his petition for review, Complainant contends, for the first time, that he did not receive Respondent's exhibit list until seven days before the hearing. He argues that because he was precluded from offering witnesses, Respondent's exhibits should be stricken because they were not served timely under sec. Ind 88.14(1), Wis. Adm. Code. That code section provides:

"(1) EXCHANGE OF NAMES OF WITNESSES AND COPIES OF EXHIBITS. By no later than the tenth day prior to the day of the hearing, the parties shall file with the division and serve upon the other party a written list of the names of witnesses and copies of the exhibits which the parties intend to use at the hearing. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing.

The wording of section Ind 88.14(1), Wis. Adm. Code, is: "By no later than the tenth day prior to the day of the hearing, the parties shall file with the division and serve upon the other party a written list . . ."

The information sheet accompanying the hearing notice states: "By no later than ten (10) days before the date of the hearing, each party must send the other party -- and file with the division -- a list . . ."

In his petition Complainant enclosed a photocopy of the envelope that enclosed Respondent's exhibit list. The envelope is postmarked February 11, 1991. As the hearing was scheduled to be held February 19, 1991, the list was sent only eight days before the hearing.

In Charles A. Pohlen v. General Electric Company, ERD Case No. 8751496, LIRC April 18, 1991, the Commission determined that service upon the opposing party, of the witness and exhibit list, is complete upon mailing.

As Respondent's list was not timely served upon Complainant, the next question is whether Respondent's exhibits should be excluded. Section Ind 88.14 permits, but does not mandate, that the exhibits be excluded.

In the Memorandum Opinion on the Pohlen case, the Commission requires that the party requesting exclusion show he/she was prejudiced by the late disclosure of the information on the list. In his petition Complainant offers no explanation concerning how his receipt of the list on the seventh day prior to hearing prejudiced him. Nor does he contend that he was precluded from offering certain evidence in rebuttal that he would have offered if he had received the list earlier. He simply has not shown that he was prejudiced.

Most importantly, at the hearing Complainant made no offer of any exhibits at the hearing, he merely stated that he wanted to mention his witnesses had not appeared. He did not request an adjournment, nor did he make any offer of proof. In short, his contention that fairness requires striking from the record Respondent's exhibits and Complainant's testimony concerning these exhibits is without merit.

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