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

NICHOLAS W BARNETT, Employee

MADISON NEWSPAPERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02007771MD


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, no benefits are payable as of week 42 of 2002, based on work performed for this employer.

Dated and mailed February 12, 2003
barneni . usd : 132 : 1    ET 483.091  PC 749 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found his services for the named employer were performed in excluded employment within the meaning of Wis. Stat. § 108.02(15)(k)4. The commission has reviewed the record in this matter, and considered the employee's arguments, and after doing so affirms the appeal tribunal decision. The commission, like the administrative law judge, interprets the word "distributing" as used in Wis. Stat. § 108.02(15)(k)4., to encompass the services performed by the employee. As reflected in the appeal tribunal decision, 

The employee argues that because the federal exclusion uses both distribution and delivery, the terms must have different meanings. The employee argues that "distribution" is meant to encompass sales managers, district managers, and circulation managers, or "self-employed people or people in highly responsible managerial positions." Following the employee's reasoning the federal exclusion applies to those self-employed/highly responsible managerial workers involved in the distribution of newspapers, who are under the age of 18. The commission thinks not. The federal exclusion was enacted nearly 20 years after the Wisconsin exclusion. That the federal language differs from the Wisconsin language does not shed light on Wisconsin's intent in using the term "distributing."

The employee indicates his belief that the quickest way to resolve this matter would be to proceed to oral arguments. The commission declines to grant the employee's request for oral argument. There is no indication that the issue would be more clearly presented at oral argument than has already been presented by the employee in his petition and hearing brief. Further, oral argument would simply delay disposition of the petition. See Wis. Admin. Code § LIRC 1.06 and attached Note.

Finally, the commission does not address the employee's constitutional arguments, as administrative agencies do not have the legal authority to determine the constitutionality of legislative enactments. See Wendlandt v. Industrial Comm., 256 Wis. 62, 67, 39 N.W.2d 854 (1949); Warshafsky v. The Journal Co., 63 Wis.2d 130, 147, 216 N.W.2d 197 (1974); and Williams v. Madison, 15 Wis.2d 430, 113 N.W.2d 395 (1962).


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uploaded 2003/02/21