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

LINDA G GLOVER, Employee

US POSTAL SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02001863MD


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 employee's request for hearing on the merits is dismissed. The initial determination shall remain in effect.

Dated and mailed July 31, 2002
gloveli . usd : 132 : 1  PC 711 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found she did not establish that her hearing request was late for a reason beyond her control. The employee engaged a lay advocate at the Labor Temple to assist her in filing the appeal. The advocate agreed to accept the employee's case on February 11. The appeal deadline was February 15. The advocate prepared the appeal on February 14 and discovered he did not have stamps. He then went to get stamps. He was trying to catch a bus to Milwaukee and did not have time to mail the appeal. He then went to Milwaukee and had coffee with his fianc‚. After returning from having coffee with his fianc‚ he recalled that he had the envelope. He put the envelope in a post office box thereafter. In his haste to mail the letter, he failed to address the letter and therefore it was returned as undeliverable.

The employee's advocate argues that the commission has previously held that once an appeal is placed in the postal stream in a timely fashion, it is filed. However, the cases cited do not involve situations in which the department never receives the appeal because it lacks an address. The statements made in those cases presuppose that all other requirements for timely delivery, such as a correct address (or any address) and postage have been accomplished.

The employee also cites a prior commission cases which found an exception to the long-standing precedent for holding the party responsible for the acts or omissions of an agent. In Davis v. Spring Green Technologies, Inc., UI Dec. Hearing No. 97005605MD (Mar. 11, 1998), the secretary for an attorney hired by a party sent the appeal to a Lancaster UI office. The Lancaster office along with other local offices had closed and therefore the appeal was returned. The commission found that the closing of the Lancaster office along with the other local offices was an unprecedented departmental action that a reasonable person might not anticipate.

There was no unprecedented departmental action that caused the delay in this case. What occurred in this case was simple negligence. The advocate was in a hurry to mail the appeal, failed to address the appeal, and as a result the appeal was late. A party cannot avoid a time deadline set by statute by entrusting the obligation to another individual, whether it be an agent or an attorney. The question is whether the appeal was filed late for a reason beyond the agent's control. The courts and commission have held that placing a complete and correct address on an appeal document is within a party's control. See Leggett & Platt, EST Division v. LIRC, No. 94-CV-382 (Wis. Cir. Ct. Ozaukee County Oct. 30, 1995); Kovalske v. Ripon Athletic, UI Dec. Hearing No. 98004465MD (LIRC Feb. 10, 1999).

The commission has not made a distinction between an attorney and an agent in deciding whether to impute acts or omissions of an attorney or agent onto the party. The employee's advocate is correct that in Buckmaster v. Olan Mills Studio, UI Dec. Hearing No. 94004102 (LIRC Nov. 23, 1994), the commission stated that the postal service was not the employee's agent. The postal service however was not representing the employee in that case; the postal service was the employee's means of filing the appeal. As in this case, the employee's advocate was her agent, not the postal service, despite the fact that the advocate attempted to file the appeal by U.S. mail.

The commission is not persuaded by the advocate's reasoning that since an agent over time is likely to make errors in representing parties, and since the error in this case although admittedly stupid was an anomaly, filing a timely appeal was not reasonably within the agent's control. The frequency with which mistakes are made does not establish their controllability. Finally, the fact that the department notifies an employee that the Labor Temple has advocates that may assist the employee in an unemployment claim does not make an advocate's negligent act resulting in a late appeal the responsibility of the department.

cc: Gary Grass


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


uploaded 2002/08/09