Wis.LIRC UC Decision: Lang, Bryan - February 16, 1999 - AA 205 - Attendance at school or training course - high school attendance does not constitute good cause for restricting availability for work; PC 731 LIRC Review, Late Petition - where petitioner contends that petition was placed in the postal stream on day prior to the date of postmark, and where postmark indicates a different town then that from which it was mailed, petition will be accepted

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

BRYAN C LANG, Employee

GENERAL BUSINESS SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003796MD

The employe has filed a petition for review by the commission of an appeal tribunal decision in this matter. Wis. Stat. � 108.09(6)(a) provides:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

The appeal tribunal decision having been dated and mailed on October 12, 1998, the last day on which a timely petition for review could have been filed was November 2, 1998. The petition for review was received November 4, 1998. It was postmarked November 3, 1998, in Madison, Wisconsin.

The employe's mother mailed the employe's petition on the employe's behalf. The employe's mother lives at the same address as the employe on Highway G in Reeseville. The employe's mother personally placed the employe's petition letter in her mailbox on November 2 to be picked up by the mailman. She put it in the box in the morning on her way out to work. The mail is consistently picked up at 12:30 p.m.

The commission has previously held that, where a petitioner contends that his petition was placed in the postal stream on the day prior to the date of postmark, and where the postmark indicates a different town then that from which it was mailed, the petition will be accepted. See Martinez v. Acme Die Casting Corp., UI Dec. Hearing No. 98606903RC (LIRC Jan. 7, 1999); Rader v. Gary Bula Farms Inc., UI Dec. Hearing No. 9600516480 (LIRC Mar. 5, 1997); James Blochowiak v. Caap, Inc., UI Dec. Hearing No. 91609706MW (LIRC Dec. 4, 1992). The commission's rationale is that a post office's decision to postmark mail at a different town from where it was deposited is not a procedure of which a reasonable person can be expected to be aware. The commission sees no reason to depart from its prior decisions in this area. (1 )

The commission therefore finds that the petition for commission review was late for a reason beyond the employe's control within the meaning of Wis. Stat. � 108.09(6)(a).

The administrative law judge found that based on his school attendance the employe was not available for at least 50% of suitable jobs in his labor market. The commission agrees with the administrative law judge's findings of fact and conclusions of law. There is no question that the employe is willing to work and has worked while attending school. However, the issue here is whether the limitations on when he can work, namely, outside of standard first-shift hours, restricts his availability for work below 50%. The only evidence in the record is that the employe's school attendance has removed him the majority of suitable jobs in his labor market, notwithstanding the fact that many jobs on second and third shift remain open to him.

The commission has previously held that high school attendance does not constitute good cause for restricting availability for work. In Mitchell v. Northside Big Value Store, UI Dec. Hearing No. 97600370MW (LIRC May 8, 1997), the commission stated:

"While the commission agrees that it is extremely important that a worker complete the basic requirements of his or her education, traditionally the department has not regarded high school attendance as good cause for restricting one's availability for work. Moreover, a note in the Code states that school attendance is considered a controllable restriction and not good cause, except when the schooling falls within the definition of approved training. Sec. 108.04(16), Stats."

DECISION

The petition for review is accepted. The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 34 of 1998, and until he is able to work and available for work.

Dated and mailed February 16, 1999
langbry.upr : 132 : 1 : AA 205 PC 731

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: General Business Services

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I write separately because while I agree with the merits of the case, I would not have found that the petition was late for a reason beyond control. The statute allows the appellant to file a timely petition if it is either received or postmarked on the last day of the appeal period. The statute does not used the terms "mailed" or "placed in the postal stream." The fact that an appellant mailed a petition on the last day does not guarantee a postmark that day because the mailing may occur after the last pick-up for the day. The employe's mother testified that she mailed the letter by putting it in her home mailbox on the last day at a time she believed was before the postal worker would arrive. She did not allow for the possibility of a substitute who might do the route in a different order. There are no specific pick-up times for home mailboxes.

For these reasons, I concur in the decision but dissent on procedural grounds.

Pamela I. Anderson, Commissioner

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Footnotes:

(1)( Back ) The concurring commissioner is correct that the employe's mother did not allow for the possibility of a substitute driver who might do the route in a different order. However, the commission does not believe that it can hold against the employe his mother's failure to anticipate circumstances that never occurred.