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

JEFFREY L SCHICKER, Employee

MIDAS MUFFLER SHOP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01603593MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employer's request for hearing on the merits is dismissed. The initial determination shall remain in effect.

Dated and mailed September 13, 2001
schicje . usd : 105 : 8  PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it fully agrees with the dismissal of the employer's appeal. In sum, the employer's position is that its request for hearing on the September 15 initial determination (regarding alleged misconduct) should also count as a proper appeal of an October 4, 2000 initial determination on the issue of an alleged bona fide offer of work from the employer to the employee. The employer's representative asserts that this is a reasonable position, despite the concession by the employer's office manager that she did not read the back of the initial determination now in issue. The employer's representative also questions the fairness of requiring the employer to read the back of the initial determinations; he also questions whether the employer reasonably should have been aware that there were two separate determinations.

Even more so than employers, employees often are subject to the issuance of multiple determinations in connection with a single claim for unemployment insurance. The determinations will govern different issues and fall under different statutory provisions and, even when they are issued on the same date, the department and commission fully expect employees to read the determinations in their entirety and file an appeal from each determination disagreed with. To suggest that a party reasonably need not read the legal decisions sent to them by the department or commission, is nonsense.

The employer's case is weakened further by the fact that the initial determinations were issued on separate dates and, in fact, covered different issues. The employer's case is weakened yet further by the fact that the appeal it is relying upon, came before the department issued the initial determination now in issue. Neither the employer nor its representative indicates how a September request for hearing can constitute a valid appeal of an initial determination which was not yet in existence at the time of the appeal.

Not even the hearing notice, finally, saves the employer. The hearing notice from the quit/discharge determination included the employee's general availability for work as an issue for hearing. This is a qualitatively different matter from the issue the employer now raises: the employee's alleged refusal of an offer of work from the employer.

For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: Law Offices of Daniel E. Goldberg, S. C.


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uploaded 2001/09/17