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

CHRISTOPHER A ROBL, Employee

BANNER PACKAGING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04402723AP


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case was the subject of an adverse initial determination issued on June 19, 2004. The issue is whether the employee's request for hearing on that determination was late and, if so, whether it was late for a reason beyond the employee's control, within the meaning of Wis. Stat. § 108.09(4). The commission concludes that the employee's request for hearing in fact was timely, and so reverses the appeal tribunal decision.

Because of the July 3-4 holiday weekend, the appeal deadline for an initial determination issued on June 19, 2004 was Tuesday, July 6, 2004. On Saturday, July 3, 2004, the employee personally delivered his request for hearing to the exterior mailbox for the Fox Valley Hearing Office in Appleton, Wisconsin. In dismissing the employee's request for hearing as late, the administrative law judge reasoned that hearing office mail is delivered directly to the hearing office by the United States Postal Service and that the hearing office's outside mail box is only emptied weekly. While it may be the practice of hearing office to check its outside mail box only weekly, it remains the case that the hearing office had physical control of the employee's request for hearing as of the open of business on Tuesday, July 6, 2004. For this reason, the request for hearing must be considered timely.

The commission therefore finds that the employee's request for hearing was timely, within the meaning of Wis. Stat. § 108.09(2r).

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the department for hearing and decision on the merits.

Dated and mailed September 14, 2004
roblchr . urr : 105 : 1  PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. Both the administrative law judge and the commission resolved the case based upon the employee's written submissions, and without hearing. For this reason, hearing credibility obviously was not a factor in the commission's decision to reverse the appeal tribunal decision.


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uploaded 2004/09/20