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

SALVATORE F SERIO, Employee

ARAMARK SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000756MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department) 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 Department's November 3, 2004 determination denied unemployment insurance benefits finding that in week 41 of 2004, the employee voluntarily terminated his employment and his quitting was not within any exception to allow for the immediate payment of unemployment insurance benefits. The determination also found an overpayment of unemployment benefits of $219.00 that the employee was directed to repay. The employee filed a timely appeal to this determination.

A hearing was held by an ALJ of the Department on December 13, 2004. On December 17, 2004, the ALJ issued an appeal tribunal decision, assigned to hearing number 04005831MD, allowing unemployment insurance benefits to the employee. The appeal tribunal decision specifically found that in week 41 of 2004, the employee did not receive a bona fide offer of suitable work, did not voluntarily terminate work but was discharged and his discharge was not for misconduct.

Although neither party appealed the appeal tribunal decision by the appeal deadline January 7, 2005, on February 11, 2005 the ALJ issued a decision setting aside the December 17, 2004 appeal tribunal decision hearing number 04005831MD, on the grounds of error. The ALJ failed to cite to any specific error in the original appeal tribunal decision.

That same day, the same ALJ issued another appeal tribunal decision under hearing number 05000756MD denying unemployment insurance benefits to the employee. The factual findings set forth in the February 11, 2005 decision for hearing number 05000756MD were the same factual findings used in the December 17, 2004 appeal tribunal decision for hearing number 04005831MD. The decision header was also not changed to reflect the new hearing number. The February 11, 2005 decision affirmed the initial determination, finding that the employee voluntarily terminated his employment and, given the fact that the earlier appeal tribunal decision allowed unemployment insurance benefits, this subsequent decision had an increased overpayment of unemployment insurance benefits that the employee was directed to repay totaling $1,657.00.

The employee petitioned the appeal tribunal decision for hearing number 05000756MD. His representative argued the administrative law judge did not have authority to set aside his earlier decision and issue the subsequent one. The commission agrees with the representative's argument. An ALJ's authority to amend appeal tribunal decisions after they have been issued is set out in Wis. Stat. § 108.09(4)(f), which provides:

(f) Postdecision changes. 1. Except as provided in par. (e) 3., (1)  within 21 days after its decision was mailed to the parties the appeal tribunal may on its own motion amend or set aside its decision and may thereafter make new findings and issue a decision on the basis of evidence previously submitted in such case, or the same or another appeal tribunal may make new findings and issue a decision after taking additional testimony.

2. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may set aside or amend an appeal tribunal decision, or portion thereof, at any time if the appeal tribunal finds that:

a. A technical or clerical mistake has occurred; or

b. The benefits paid or payable to a employee have been affected by wages earned by the claimant which have not been paid, and the appeal tribunal is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.

3. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may, within two years after the date of the decision, reopen its decision if it has reason to believe that a party offered false evidence or a witness gave false testimony on an issue material to its decision. Thereafter, and after receiving additional evidence or taking additional testimony, the same or another appeal tribunal may set aside its original decision, make new findings and issue a decision.

In this case, the set aside decision and second appeal tribunal decision were not issued until after 21 days elapsed from the issuance of the original appeal tribunal decision. As such, the ALJ could not rely on subdivision (f)1. for authority to act. There is also nothing in the record hinting at the necessary facts for the application of subdivision (f)2.b. (relating to benefits being affected by wages earned but not paid and a wage claim having been filed) or subsection (f)3. (relating to false evidence or testimony by a party or witness). Therefore, only subdivision (f)2.a., could potentially serve as the statutory basis for the ALJ's actions.

In Kowalczyk, TRA Hearing No. 04200010MD (LIRC February 28, 2005), the commission dealt with a somewhat similar case. In explaining the (f)2.a. provision, the commission held,

The "technical or clerical mistake" standard in § 108.09(4)(f)2.a. is clearly different from, and clearly narrower than, the "subsequent information [or] mistake, including an error of law" standard in § 108.09(2)(c) which applies to the department's authority to set aside initial determinations after the appeal period has run. The "technical or clerical mistake" standard in § 108.09(4)(f)2.a. is also narrower than the "mistake or newly discovered evidence" standard in § 108.09(6)(c) which applies to the commission's authority to set aside final decisions. See, Rouse v. Holiday Inn of Rhinelander (LIRC, June 7, 1999). The Rouse decision provides an example of what a "technical or clerical error" is: in that case, department correspondence was erroneously sent to the wrong employing unit, and a decision ended up listing the wrong employer.

In this case, for whatever reason, the second ATD comes to a different legal conclusion using the same facts. The record does not support a finding that the original decision for hearing number 04005831MD was set aside and reissued due to any clerical or technical mistake, within the meaning of (f)2.a.

The commission therefore finds that the appeal tribunal lacked the authority to issue the February 11, 2005 set aside decision and also lacked the authority to issue the appeal tribunal decision for hearing number 05000756MD within the meaning of Wis. Stat. § 108.09(4)(f). The December 17, 2004 appeal tribunal decision remains final.

DECISION

The set aside decision for hearing number 04005831MD and the appeal tribunal decision for hearing number 05000756MD issued on February 11, 2005 are void and are set aside. The decision for hearing number 04005831MD remains in effect. The employee is eligible for unemployment insurance benefits as of week 41 of 2004, if otherwise qualified.

Dated and mailed June 30, 2005
seriosa2 . urr : 150 : 1 PC 715

/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 taking action in this matter. The commission's actions are not due to any differing credibility assessment but due to the commission's legal conclusion that the administrative law judge did not have authority to act on February 11, 2005.

 

cc:
Nicole Weir
Aramark Services, Inc. (Madison, Wisconsin)



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Footnotes:

(1)( Back ) Deals with nonappearance issues and is not relevant for the commission's decision in this matter.


uploaded 2005/07/06