PATRICK C SHAFFER, Employee

BORDERS BOOK SHOP, Employer

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 makes the following:

In February of 1997, the employer provided written notice (exhibit #5) to the department that the Frick Co. (predecessor to UC Express) was the "attorney-in- fact" for all unemployment benefit matters for the employer in Wisconsin. This notice specifically stated that all communications relating to these benefit matters should be sent to the Frick Co.'s mailing address, a post office box in St. Louis. This notice was in effect at all times relevant here.

Despite this notice, the department sent the determination at issue here to the mailing address for the employer's corporate offices in Ann Arbor, Michigan. This determination stated that the appeal deadline was February 25, 2003.

The employer's agent did not become aware of the determination until February 26, 2003, when it received a FAX which had been sent by the employer after business hours on February 25, 2003. The employer, through its agent, filed an appeal of the determination on February 28, 2003.

Wisconsin Statutes § 108.09(2r) provides that a party may request a hearing as to any matter in an initial determination if such request is made in accordance with procedures prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed or given to the party, whichever occurs first. An untimely hearing request will be dismissed unless the party filing the request shows that the reason for having failed to file the request timely was beyond the party's control. Wis. Stat. § 108.09(4)(c).

This case is akin to those in which there is an attorney of record. The commission has held in such cases that it was reasonable for the client to assume, even when they received a copy of a communication from the department, that their attorney received a copy as well and was handling it on their behalf. See, e.g., Leach v. A1 Heating & Air Conditioning Inc., UI Hearing No. 03401652AP (LIRC July 17, 2003); Prince Cable, Inc., UI Hearing No. S9900227MW (LIRC Feb. 23, 2001). Here, the employer properly notified the department that communications should be directed to its agent and provided a mailing address for that purpose. It was reasonable for the employer to assume, when it received a copy of the determination, that the department had sent one to the employer's agent as well, and that the agent was handling the matter on the employer's behalf. In addition, it would appear to be unjust for a party to be deprived of the opportunity for hearing because the department made a mistake and sent a determination to the wrong address.

Here, if the operable date is February 26, 2003, the date the agent received notice of the determination, the employer, by operation of Wis. Adm. Code § 140.01(2), would have an additional 14 days within which to file an appeal since this date of notice occurred after the expiration of the original appeal period. The employer's agent filed the appeal on February 28, 2003, i.e., within this extended appeal period.

The commission reverses the decision of the administrative law judge to find that the employer had a reason beyond its control, within the meaning of Wis. Stat. § 108.09(4)(c), for failing to file its appeal within the original appeal period; that the employer timely filed its appeal within the extended appeal period provided by Wis. Adm. Code § 140.01(2); and that, as a result, the employer's request for hearing should be granted.

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the department for hearing on the merits.

Dated and mailed August 19, 2003
shaffpa . urr : 115 : 1   PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not conduct a credibility conference with the administrative law judge before reversing his decision, because the commission's reversal was based on a different interpretation of the applicable law, not a different view of the facts.

cc: 
Borders, Inc. (St. Louis, MO)
Borders Books Music & Cafe No 336 (Fox Point, WI)

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