ETCHER FARMS, INC., Plaintiff-Appellant, vs. IOWA WORKFORCE DEVELOPMENT and EMPLOYMENT APPEAL BOARD, Defendants-Appellees.

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IN THE COURT OF APPEALS OF IOWA No. 2-682 / 02-1364 Filed September 11, 2002 ETCHER FARMS, INC., Plaintiff-Appellant, vs. IOWA WORKFORCE DEVELOPMENT and EMPLOYMENT APPEAL BOARD, Defendants-Appellees. Appeal from the Iowa District Court for Monroe County, Daniel P. Wilson, Judge. Petitioner appeals from the district court's ruling on judicial review affirming the Employment Appeal Board's decision to award unemployment benefits. AFFIRMED. John Pabst of Pabst Law Firm, Albia, for appellant. Anita Garrison of Employment Appeal Board, Des Moines, for appellee. Considered by Sackett, C.J., and Vogel and Mahan, JJ. MAHAN, J. Petitioner appeals from the district court's ruling on judicial review affirming the Employment Appeal Board's decision to award unemployment benefits. We affirm. Background Facts and Proceedings. Brian Carlson was employed as a farm worker for Etcher Farms (Etcher) from October 20, 1999 to February 12, 2001. On February 11, 2001, Carlson called Etcher and informed them he would not be able to work that day because he was unable to make childcare arrangements. The following day, Carlson received a written reprimand from Scott Etcher for his absence on the previous day. Carlson refused to sign the reprimand. Carlson filed a claim for unemployment benefits. His claim for benefits was denied on the ground that he was "discharged from work on 02/12/01, for insubordination." Carlson appealed, and following a hearing an administrative law judge found in Carlson's favor concluding Etcher had not met its burden of establishing disqualifying job misconduct. Neither Scott Etcher nor Carlson appeared at this hearing. Etcher appealed to the Employment Appeal Board, which upheld the decision. The district court affirmed on judicial review. Award of Unemployment Benefits. Etcher has appealed to this court claiming Carlson either left his employment (1) without good cause attributable to the employer; or (2) for misconduct. The administrative law judge in making her decision stated: The claimant did not agree with the warning and refused to sign it. The employer did not make any provisions for the claimant to sign acknowledging receipt of the warning rather than signing with the understanding that his signature indicated agreement with the warning. Also the employer did not inform the claimant he would lose his job if he did not sign the warning. The claimant stated he was discharged and the employer claims he walked out after refusing to sign the warning. Neither the claimant nor Scott Etcher participated in the appeal hearing. Considering the circumstances surrounding the issuance of the warning, and the fact the employer has the burden of proof and did not put forth its best evidence by having Scott Etcher participate in the hearing, the administrative law judge concludes the employer has not met its burden of proving disqualifying job misconduct. On judicial review, the district court agreed with the findings and conclusions of the administrative law judge and so do we. As previously pointed out, the employer has the burden of proof, and Etcher failed to meet this burden when Scott Etcher did not participate in the appeal hearing. Etcher contends Greene v. Iowa Department of Job Services, 299 N.W.2d 651, 655 (Iowa 1980), is dispositive of this case. We disagree. The present case is distinguishable from Greene for two reasons. First of all, in Greene it is clear the claimant was informed by her supervisor, and testified she knew, that by signing the reprimand she was merely acknowledging her receipt of the notice. Greene, 299 N.W.2d at 655. This is not the situation in the instant case. Secondly, it is clear from the record the employer's burden of proof has not been met in the instant case as it was in Greene. Id. Thus, we conclude the administrative law judge's decision was supported by substantial evidence. AFFIRMED.