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

RICHARD W. KUBATZKI, Claimant

TRADE ACT DECISION
Hearing No. 03403863AP


A determination concerning the claimant's eligibility for benefits under the Trade Act of 1974 (as amended) was issued by the Department of Workforce Development on August 2, 2003. A copy of the determination was mailed on that date to the last-known address of the claimant, with information on the procedures necessary to appeal that determination and the time within which such an appeal had to be filed.

Pursuant to Wis. Stat. § 108.09(2r) and Wis. Admin. Code § 140.01, the last day on which a timely request for hearing could be filed was August 18, 2003. No request for hearing was filed by that date.

The claimant subsequently filed a letter which was postmarked October 21, 2003 and received by the department on October 22, 2003. In his letter, the claimant explained certain circumstances bearing upon his claim and upon his not having contacted the department about the determination sooner than he did. This letter was treated as an attempt to appeal. (1)

An administrative law judge (ALJ) for the department, acting under Wis. Stat. § 108.09(4)(c) and Wis. Admin. Code § 140.04, reviewed the file and the claimant's letter, and she then issued a decision concluding that the explanation provided by the claimant did not establish that his appeal was late for a reason beyond his control within the meaning of § 108.09(4)(c). The claimant filed a timely petition for commission review of the ALJ's decision.

There has been no hearing in this matter. (2)   The following description of the relevant facts is based on the assertions made by the claimant in his initial letter and his petition for review. This description is not to be taken as Findings of Fact, but rather as matters accepted as true for purposes of evaluating the legal issues presented herein.

The claimant's assertions - The claimant's potential eligibility for benefits under the Trade Act arises from his employment at Manitowoc Cranes. He had begun working there on March 6, 2002. His last day of work there was August 24, 2002.

On August 21, 2002, a representative of Manitowoc Cranes' payroll department met with employees (including the claimant) whose employment was going to be ending, and she informed them that they "could use [their] vacation if [they] had it coming or take a payout". She also informed them that they "had to have been employed for a least one year to be eligible for vacation time". Since he had been employed for 25 weeks and received no vacation payout on his last check the claimant believed it was obvious that he had no vacation time coming.

In August 2003 when the claimant received the determination in this matter, he found that it reflected that he had worked for Manitowoc Cranes for only 24 weeks, which was short of the 26 weeks required for him to be eligible for benefits under the Trade Act. He noted that this was in error, because given that he had started at Manitowoc Cranes on March 6, 2002 and had last worked there on August 24, 2002, he had actually worked 25 weeks. However, he explained, he did not appeal at that time because this was still less than the necessary 26 weeks.

On September 15, 2003, the claimant received a check from Manitowoc Cranes for gross earnings of $479.36 (net of $393.16). In the "Description" column on the check stub it noted, "Vacation", and attached to the stub was a post-it-note that stated "This is your vacation payout". The claimant was surprised to receive this check because he had been told in the meeting in August, 2002 that he was not eligible for vacation time. It occurred to the claimant that this might change the number of weeks of employment credited to him for purposes of establishing eligibility for benefits under the Trade Act. The claimant contacted the department and ended up speaking to several people about the matter. Eventually, he was advised that he should "write to the Appeals Dept." For that reason, he sent the department the letter which has been treated as a late appeal in this matter.

Discussion - If the claimant in fact had a vacation entitlement which he could have used if he had been told about it in time, for example during the meeting with Manitowoc Cranes' payroll representative on August 21, 2002, he might have been able to use it to extend his employment one more week past his August 24, 2002 layoff date by taking vacation leave in the following week. Depending on the specific factual circumstances - including the question of when he would have been given the vacation pay for that time, and whether he would still have been considered to be on the payroll of Manitowoc Cranes during the period covered by the vacation - this might have had the effect of moving the date of his separation into the following week (when his vacation ended), which would then have extended his qualifying period by one week. See, Daniel M. Alexander (LIRC, July 10, 2003), holding that the date of separation for an employee who was allowed by the employer to continue to be considered an employee on payroll for a few final weeks in a paid leave status, was the date on which that leave status ended. The result of this would have been, that the week of vacation would have been in the claimant's qualifying period, and he would have met the 26-week requirement.

It is understandable that the claimant did not appeal the determination when it was issued to him, since at that time based on the information available to him it appeared to be correct in finding that he had fewer than the required 26 weeks of work with Manitowoc Cranes. Accepting for the present purposes the accuracy of the claimant's assertions, it appears that he was given misinformation by Manitowoc Cranes which prevented him from understanding his actual legal rights at the time the determination was issued. In these particular circumstances, the commission concludes that the reason that the claimant did not file his appeal of the determination in a timely manner was a reason beyond his control within the meaning of Wis. Stat. § 108.09(4)(c).

Because no hearing has yet been held, the appropriate course is for the claimant to be provided an opportunity for such a hearing, so that he may present evidence to establish the explanation for the lateness of his appeal which he has asserted in his letter and petition. A hearing is also necessary to properly develop the facts so that an informed decision can be made on the question of whether the claimant had an additional week of vacation entitlement under such conditions as would have made the principle recognized in the Daniel M. Alexander case applicable. For this reason, the commission's action in this matter is to remand for hearing.

For the foregoing reasons, the commission now makes the following:

DECISION

The decision of the administrative law judge is reversed. This matter is remanded to the department for hearing on the issue of whether the reason the claimant's request for hearing was not timely was a reason beyond his control, and provisionally on the merits.

Dated and mailed January 14, 2004
kubatri . trr : 110 : PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: It is recommended to the department that consideration be given to sending a copy of the notice of hearing to Manitowoc Cranes and to making provision to take testimony of a representative of Manitowoc Cranes if possible. It would be helpful to a resolution of the issues presented here to obtain from Manitowoc Cranes an explanation of the circumstances under which the claimant was issued a check for vacation pay, more than a year after his employment had ended.

cc: Manitowoc Cranes


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Footnotes:

(1)( Back ) In his subsequent petition for review, the claimant has repeatedly asserted that his letter was "a request for information . . . , not an appeal". It is not apparent why the claimant makes this point. If it were concluded that the letter was not an attempt to appeal, the determination would necessarily have to remain final, and that would be the end of the matter. However, the claimant is clearly asking to have the determination reversed. Therefore, treating the letter as an attempt to appeal is consistent with the outcome the claimant is seeking.

(2)( Back ) Wis. Stat. § 108.09(4)(c) provides: 

If a party files an appeal which is not timely, the department may schedule a hearing concerning the issue of whether the party's failure to timely file the appeal was for a reason beyond the party's control. The department may also provisionally schedule a hearing concerning any matter in the determination. If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file the appeal was not for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding and dismissing the appeal. If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file an appeal was for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under sub. (3) (b) after conducting a hearing concerning any matter in the determination. 

Notwithstanding that this provision indicates that an appeal tribunal's actions, to find that an appeal either was or was not late for a reason beyond the party's control, are to occur only "after hearing testimony", the department interprets this language as allowing it to dispose of appeals without hearing by accepting a party's explanation as true for purposes of evaluating its legal sufficiency. The department's rule concerning procedures to be followed in late appeal cases parallels this provision of the statute but omits the limiting language about the ALJs' actions being taken "after hearing testimony". See, Wis. Admin. Code § 140.04.

 


uploaded 2004/01/20