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


JENNIFER C HONG, Employe

PEDROS MEXICAN RESTAURANT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001460MD


On April 23, 1998, an administrative law judge for the Department of Workforce Development issued an appeal tribunal decision which held that the employe's request for hearing had been late, but not for a reason beyond the employe's control. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case was the subject of an adverse initial determination issued on March 7, 1998. The last date for a timely request for hearing was March 23. The employe's request for hearing has a private meter mark of March 23 and a United States postal mark of March 24, and was received March 25. The issue in the case is whether the employe's request for hearing was late and, if so, whether it was late for a reason beyond the employe's control. The commission concludes that the request for hearing was late, but that it was late for a reason beyond the employe's control, and so reverses the appeal tribunal decision.

Pursuant to Wis. Stat. § 108.09(6), a late appeal must be dismissed unless it was late for a reason beyond the appellant's control. By administrative rule, when an envelope containing an appeal has both a private meter postmark and a United States postal mark with a later date, the United States postal mark controls. Therefore, the employe's appeal is deemed to have been filed on March 24, 1998, a day late. The employe's father filed the request for hearing on her behalf. He took the letter containing the appeal to the post office between Park Street and Fish Hatchery Road in Madison, Wisconsin, arriving just after 7:00 p.m. on March 23. The mail box into which the employe's father deposited the appeal, had a pick-up time of 7:30 p.m.

The administrative law judge, in dismissing the appeal, reasoned that by waiting until the evening of March 23 to mail the letter, the employe's father "took a substantial chance" that the letter would not be postmarked until the following day. Postal service procedure requires, though, that envelopes be postmarked with the same date on which the mail is scheduled to be collected from the mail boxes. The commission has to conclude that the "chance" the employe's father took was not substantial, since the vast majority of the time the post office works the way it says it will work and is supposed to work, that is, it postmarks letters in a timely manner. In this case, postal service personnel were a day late in postmarking an appeal the employe's father had timely placed in the postal stream. The law "only requires that the employe place her appeal in the postal stream at such time as to allow it to receive a timely postmark." Buckmaster v. Olan Mills Studio, No. 97004102MD (LIRC, 11-23-94). In that case, the commission held that the employe had the right to mail her appeal just before the deadline, and that she "could not control the postal service's failure to perform its obligations and duties."

So it is here. The employe had the right to mail her appeal on the evening of March 23, before the last pickup time at the mail box at which her father mailed the appeal. That the appeal subsequently received an incorrect postmark from the postal service is not a matter within the employe's control. For these reasons, the commission finds that the employe's request for hearing was late, but that it was late for a reason beyond the employe's control, within the meaning of Wis. Stat. § 108.09(6).

DECISION

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

Dated and mailed: June 29, 1998
hongjen.urr : 105 : 7 PC 711

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision, and the basis for reversal is a differing credibility assessment from that made by the administrative law judge. Such is not the case here; the administrative law judge accepted the testimony from the employe's father that he mailed the appeal on the evening of March 23. The commission's reversal is based upon its conclusion that the undisputed facts do not require the legal conclusion the administrative law judge reached.

cc: RICHARD D HONG


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