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

ALLAN F. GLASSCHROEDER, Employee

A 1 A PLUS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing Nos. 03401009AP, 03401010AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued "Appeal Tribunal Decision - Withdrawal" decisions in these matters. A petition for review was filed.

The commission has considered the petition and it has reviewed the record in these matters. Based on its review, the commission now makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee has filed a petition for review of "Appeal Tribunal Decision - Withdrawal" decisions which were issued in response to his requests to withdraw his appeals of initial determinations in these matters.

A threshold question is presented, as to whether such "Appeal Tribunal Decision - Withdrawal" decisions are appealable to and reviewable by the commission. If they are, the question next presented is whether the petition for review was untimely for a reason beyond the petitioner's control. If it was, the question next presented is whether the withdrawal decisions should be affirmed or set aside. These questions are discussed in order below.  
  

Appealability of "Appeal Tribunal Decision - Withdrawal" decisions -- LIRC's authority to accept and decide appeals in UI cases is described in Wis. Stat. § 108.09(6)(a), which provides that "[t]he department or any party may petition the commission for review of an appeal tribunal decision" (emphasis added).

The term "appeal tribunal decision" is not expressly defined in the statutes. However, the meaning of that term is made clear by its use in the statutes and rules to describe the different types of decisions issued by administrative law judges of the department acting as appeal tribunals. (1)   These include decisions on the merits of appeals, see, Wis. Stat. §§ 108.09(3)(b), 108.09(4)(a), Wis. Admin. Code §§ DWD 100.02(1), 140.06-17;  decisions dismissing appeals on grounds of untimeliness, see, § 108.09(4)(c), Wis. Admin. Code § DWD 140.04;  decisions dismissing appeals on grounds of an appellant's failure to appear at a hearing, see, Wis. Stat. § 108.09(4)(d), Wis. Admin. Code § DWD 140.13;  and withdrawal decisions, see, Wis. Admin. Code § DWD 140.05. All of these types of decisions are issued on the department's "Appeal Tribunal Decision" form (Form No. UCL-8035). This form has a prominent heading stating, "Appeal Tribunal Decision". Decisions on the merits bear that heading without modification, late appeal decisions are modified by the addition of the phrase "Dismissal - Late Appeal" below the heading, non-appearance decisions are modified by the addition of the phrase "Dismissal - Did Not Appear" below the heading, and withdrawal decisions are modified by the addition of the word "Withdrawal" below the heading. All of these types of decisions are signed by administrative law judges in their capacity as such. These factors persuade the commission that withdrawal decisions are "appeal tribunal decisions" within the meaning of Wis. Stat. § 108.09(6)(a).

The commission has considered various arguments which could conceivably be advanced in support of the conclusion that, notwithstanding the foregoing, withdrawal decisions should still be considered non-appealable. However, it finds such arguments unpersuasive.

The commission has considered the fact that there is nothing in the statutes or rules that expressly and specifically states that withdrawal decisions are appealable. However, this is also true as to late appeal and non-appearance decisions, and this has never been thought to mean that they are not appealable. As noted above, there is nothing in the statutes that specifically indicates that any particular type of "appeal tribunal decision" is appealable. The statute simply provides that, if something is an "appeal tribunal decision", it is appealable.

The commission has noted the fact that in the case of withdrawal decisions, there will not have been an actual hearing before the ALJ, and it has considered whether this might be seen as a factor differentiating such decisions from the other types of decisions that are unquestionably appealable to and reviewable by the commission. It has concluded that this is not a differentiating factor. It is the practice of the department that in late appeal cases and non-appearance cases, appeal tribunals may issue decisions without holding a hearing if they determine that the explanation offered for the lateness of the appeal, or for not appearing at the hearing, is not legally sufficient even if true as a matter of fact. As a result, in some cases, late appeal and non-appearance decisions are issued by ALJs and appealed to LIRC without there having been an actual hearing before the appeal tribunal. See, e.g., Leach v. A 1 Heating (LIRC, July 17, 2003) (ALJ's decision on late appeal based upon written correspondence from the parties), Rylski v. Tel Mark Sales (LIRC, February 11, 2002) (appeal of non-appearance issue which had been disposed of by ALJ without hearing). It is unquestioned, however, that in such cases the ALJs' decisions are appealable to and reviewable by the commission even though there has been no hearing before the ALJ. Thus, this cannot be looked to as a distinction justifying a conclusion that withdrawal decisions are not appealable to the commission.

The commission has considered the potential argument, that withdrawal decisions are distinguishable from the other types of decisions in that there would no reason for them to be appealable since they arise in the first place out of a party's desire to drop their request for hearing. However, there could be cases in which there was a dispute about whether the party had wanted to withdraw. Such disputes could arise given that under the department's rules, a withdrawal does not have to be made in writing, and a party can be determined to have engaged in a withdrawal by choosing not to continue to participate in a hearing (see, § DWD 140.05(1)). If a telephone contact from a claimant was understood by a department representative as a withdrawal but not intended as such by the claimant, or if a claimant left a hearing without intending that to be a withdrawal but an administrative law judge treated it as such, that claimant could understandably wish to appeal any withdrawal decision that resulted. Another case that could result in an understandable desire to appeal a withdrawal ATD, would be one in which an appellant sought to retract a request for withdrawal, and the ALJ decided that there was not good cause for such retraction or that the retraction request was otherwise not valid (for example, because it was not in writing or did not state a reason for the request) (see, § DWD 140.05(2)).

The commission has also considered the potential argument that given the nature of withdrawal decisions -- there having been no disposition on the merits -- the question of the appropriate scope of review will be problematic. However, in other areas in which it is unquestioned that the commission can conduct review of appeal tribunal decisions, the scope of its review is understood to be limited by the nature of the specific factual issues and legal standards involved. Thus, for example, in appeals of a non-appearance dismissal the commission's review concerns itself with the question of the non-appearance and whether there was good cause for it, and in appeals of late requests for hearing the commission's review involves the application of the "beyond control" standard. Similarly, the scope of the commission's review in withdrawal cases would appropriately be limited by, and to, the specific issues arising in such cases under the standards created by the department's rule. The questions that an ALJ might have to address in resolving a withdrawal situation would be whether there had in fact been a withdrawal, whether there had been request to retract which met the requirements of the department's rule, and whether there was "good cause" to retract. These would thus be the only issues which would be presented on commission review. Addressing these issues should be a straightforward process. The commission is therefore not persuaded that an interpretation of the statutes and rules finding withdrawal decisions appealable should be avoided because of concerns that it would difficult to know what scope of review to apply.

An interpretation of Wis. Stat. § 108.09(6)(a) that treats withdrawal decisions as appealable is also preferable because it avoids a system in which a party's property interests in connection with an unemployment insurance claim could be extinguished without right of appeal. The commission has recognized that the existence of a right to appeal an adverse determination is required by due process, and that if there is no such right, a problem of constitutional proportions could be presented. Prom v. Klemm Tank Lines (LIRC, August 28, 2003). Looking to the well-accepted principle of statutory interpretation that a construction of a statute which gives rise to serious doubt of its constitutionality should be avoided where a different construction which will avoid such doubt is permissible, the commission concluded in Prom that the interpretation ensuring the existence of the right to appeal was appropriate. It so concludes here.

The commission has taken into consideration the fact that, precisely because of the department's practices of expressly telling parties that withdrawal decisions are not appealable and of conspicuously omitting information about appeal deadlines on withdrawal decisions, significant problems will be presented with the handling of late petitions for review of such decisions. It has also taken into consideration the fact that, given the structure of and timelines contained in the department's rule governing withdrawals and retractions of withdrawals, there may be practical problems in processing appeals. However, the commission cannot allow the potential for these difficulties to control the outcome which is otherwise clearly called for. In any event, the commission believes that there are workable solutions to such problems, as discussed in the NOTE below.

For all of the reasons discussed above, the commission believes that it is an unavoidable conclusion that under the current statute and rules, and as they are currently being issued by the department, withdrawal decisions must be considered appealable to and reviewable by the commission.  
  

Late petition issue - Under Wis. Stat. § 108.09(6)(a), a petition for review of an appeal tribunal decision must be received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed. The withdrawal decisions in these matters were issued on May 19, 2003. However, the petition for review was filed (by facsimile transmission) only on June 13, 2003, which is 25 days after the date on which the decisions were issued. The petition was therefore untimely.

The commission concludes, though, that it must view the petition as having been filed late for a reason beyond the petitioner's control, within the meaning of § 108.09(6)(a). Consistent with the department's usual practice as noted above, the withdrawal decisions in this case were issued with the words "Not Applicable" entered in the "Appeal Must Be Received Or Postmarked By" box on the decision. In addition, the "Appeal Tribunal Decision Information" on the back of the decision, stated that '[a] party cannot appeal a withdrawal decision". This was incorrect information concerning the right of appeal from such decisions.

The fact that the department had the understanding that the decisions were not appealable explains the advice given to parties by the withdrawal dismissal form, but it does not change the effect on parties caused by that advice. The commission has repeatedly recognized that where a party is given incorrect information by the department that led them to misunderstand the necessity or advisability of appealing, it can be appropriate to find that the party's failure to file a timely appeal is for a reason beyond their control. See, Sprague v. Nostam Inc. (LIRC, February 20, 2004). It must so find here.  
  

Review of the withdrawal decisions - Consistent with its discussion above, in carrying out review of a withdrawal decision the commission will first look to the question of whether there was in fact a withdrawal. Here, that question is easily answered. The employee filed written withdrawals, on department withdrawal forms, on May 19, 2003. There is thus no question but that there was indeed a withdrawal.

The commission will next look to the question of whether there was a request to retract the withdrawals that met the requirements of the department's rule. Wis. Admin. Code § DWD 140.05(2) provides that a request to retract a withdrawal and reinstate an appeal:

. . . shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.

The only thing that can even arguably be treated as a retraction request in the 21-day period after the withdrawal decisions were issued in this case, is the employee's June 5, 2003 e-mail message which included in its body a request that his appeals in the A 1 A Plus matters be reinstated.

As noted above, though, the applicable rule provides that retraction requests must be "in writing". A question is presented here, as to whether this e-mail message can be considered to be "in writing".

Neither the Unemployment Act nor the department's rules thereunder contain any provisions expressly allowing, or prohibiting, the filing of any kind of appeal, notice or other paper by e-mail. Neither do they define the term "in writing". The commission believes that it is noteworthy, however, that in the department's detailed rule governing the filing of requests for hearings, Wis. Admin. Code § DWD 140.01(c)7, there is an express mention of one form of electronic data transfer - facsimile transmission - but there is no mention of e-mail, which is another, different method of electronic data transfer. Application of the familiar and well established rule of construction, inclusio unius est exclusio alterius (to include one thing is to exclude others), suggests that filing of such appeals by e- mail is not allowed. In addition, the commission has held in a somewhat analogous situation, concerning the filing of a petition for review of a decision of an Equal Rights Division ALJ, that an e-mail petition is not acceptable because such petitions must under Wis. Admin. Code § DWD 218.18(1) be "written", and that a message sent electronically by e-mail is not "written". Farvour v. County of Winnebago (LIRC ER Decision, Nov. 13, 2003). For the foregoing reasons, the commission concludes that the employee's June 5, 2003 e-mail message can not be considered to have met the requirements of Wis. Admin. Code § DWD 140.05(2) that a request to retract a withdrawal be "in writing".

Because there was no request to retract which met the requirements of Wis. Admin. Code § DWD 140.05(2), there is no need to address the question of whether there was "good cause" to retract.

The commission therefore finds that the employee's requests for hearing were withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the employee did not file a request to retract his withdrawals which met the requirements of Wis. Admin. Code § DWD 140.05(2).

DECISION

The withdrawal decisions of the administrative law judge are affirmed. Accordingly, the requests for hearing are withdrawn. The Initial Determinations remain in effect.

Dated and mailed March 4, 2004
glassa1 . urr : 110 : 8  PC 718  PC 731  PC 749 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission recognizes that because of the department's current practices of telling parties that withdrawal decisions are not appealable, and also because of the structure of the department's rule governing withdrawals and retractions of withdrawals, there may as a result of this decision be some practical problems in the handling of withdrawals, attempts to retract withdrawals, and attempts to appeal withdrawal decisions. The commission would respectfully suggest that these problems are not insurmountable.

Withdrawal situations bear similarities to appellant non-appearance situations. In both cases, there is an occurrence (filing a withdrawal of an appeal, or failing to appear at a hearing), which results in the issuance of a decision dismissing an appeal other than on the merits. In both cases, applicable law provides that if the department receives something from the appellant within 21 days from the date of the dismissal decision which establishes good cause, the dismissal decision may be set aside and the appeal reinstated. In both cases, there can be factual issues about the occurrence that resulted in the dismissal order, and legal issues about the application of the good cause standard. The provisions of Wis. Stat. § 108.09(4)(d)3. create a system in which these issues may be initially decided by an appeal tribunal, and in which those decisions may then be reviewed by the commission. That system provides a model which would be a workable one for withdrawal situations as well. The commission recommends consideration of such a system to the department.

 


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Footnotes:

(1)( Back ) It is clear from other references in the statutes and rules (see, Wis. Stat. § 108.09(3), concerning "appeal tribunals", and Wis. Admin. Code § DWD 100.02, defining "administrative law judge"), that the terms "appeal tribunal" and "administrative law judge" are effectively interchangeable.

 


uploaded 2004/03/11