STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

SHIRLEY A BUCKMASTER, Employee

Involving the account of

OLAN MILLS STUDIO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 94004102MD


FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department of Industry, Labor and Human Relations issued an initial determination in the above-caption matter which found that the employe voluntarily terminated her employment but not for a reason which would allow the immediate payment of benefits. As a result, benefits were denied. That determination became final unless an appeal was filed on or before September 7, 1994. The employe's appeal was received by the Madison hearing office on September 9, 1994, and was postmarked September 8, 1994.

The employe deposited her appeal letter at between 9:10 p.m. and 9:25 p.m. on the evening of September 7, 1994, at the Milwaukee Street post office in Madison, Wisconsin. The employe placed her appeal letter in the mail drop box in the lobby of the post office. That drop box had listed hours indicating that the last pick up was to occur at midnight. The United States Postal Service failed to collect mail from that drop box and, therefore, the employe's appeal was not postmarked until September 8, 1994.

The issue to be decided is whether the employe's failure to file a timely request for hearing was for a reason beyond her control. See sec. 108.09 (4), Stats.

The appeal tribunal found that the employe's appeal was not late for a reason beyond her control because she waited until approximately three hours before the deadline to mail the appeal and since she chose the postal service as her agent for delivery, the negligence of the post office was attributed to her. The commission disagrees with the appeal tribunal's findings and conclusions. While the employe did wait until three hours before the appeal deadline, she has a right to do so. The law only requires that the employe place her appeal in the postal stream at such time as to allow it to receive a timely postmark. The employe did so in this case. While the employe used the United States Postal Service, that did not make the postal service her agent such that all negligent acts committed by the postal service are attributed to her. The employe could not control the postal service's failure to perform its obligations and duties.

The commission therefore finds that the employe failed to file a timely request for hearing but her failure to do so was for a reason beyond her control, within the meaning of sec. 108.09 (4) and Chapter 140 of the Wisconsin Administrative Code.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, this matter is remanded to the hearing office for a hearing and decision on the merits of the employe's appeal.

Dated and mailed November 23, 1994
132 : CD00985  PC 711

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

James R. Meier, Commissioner


MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission does not disturb any credibility determination made by the appeal tribunal but reaches a different legal conclusion when applying the facts of this case to the law.

cc:
Olan Mills

Greg Tscheider
UC Appeals Clinic


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