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

ALICIA F YOUNG, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

FOOD TEAM SUITE 730

UNEMPLOYMENT INSURANCE DECISION
Hearing Nos. 04611502MW, 04611503MW,
04611504 MW and 04611505MW


On March 7, 2005, an administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued four "Appeal Tribunal Decision - Withdrawal" documents for hearing numbers 04611502MW, 04611503MW, 04611504MW and 04611505MW.

Two letters within the same envelope postmarked June 29, 2005 were forwarded to the Commission as a petition for review of the each of the four March 7, 2005 documents.

The commission has considered the petitions and the positions of the parties, and it has reviewed the record in these matters. The commission has written one decision for all four matters, given the relationship between each. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On December 16, 2004, four determinations were issued involving the claimant's eligibility for unemployment insurance benefits. The determinations held:

1. that beginning in week 28 of 2003 the claimant worked and earned wages from Food Team and the Milwaukee Public Schools (MPS) and was overpaid $219.000 ($168.00 of which was included in a separate overpayment decision) that she was required to repay (determination number 040873664),

2. that beginning in week 28 of 2003 the claimant concealed work performed and wages earned; the claimant worked for Food Team and MPS and was to forfeit $1,323.00 in unemployment compensation benefits payable in the six-year period ending December 11, 2010 (determination number 040873694),

3. that in week 43 of 2003, the claimant quit Food Team, her quitting was not within any exception to allow for immediate payment of benefits and she had been overpaid $134.000 ($42.00 of which was included in a separate overpayment decision) that she was required to repay but that as of week 48 of 2003 she had requalified (determination number 040873824), and

4. that week 43 of 2003 the claimant concealed a quit from Food Team and was to forfeit $189.00 in unemployment compensation benefits payable in the six-year period ending December 11, 2010 (determination number 040873834).

By letter postmarked December 20, 2004, the claimant timely appealed the four determinations. Hearing numbers were assigned to each appeal as follows:

1. 04611502MW was assigned to the work and wages determination,

2. 046011503MW was assigned to the work and wages concealment determination,

3. 046011504MW was assigned to the voluntary termination determination, and

4. 046011505MW was assigned to the concealment related to the voluntary termination determination.

Appeal hearings in the above matters were scheduled together for 8:00 a.m. on Thursday, March 3, 2005 at the Milwaukee hearing office. The claimant did not appear for the in person hearings.1(1)

On March 4, 2005, the hearing office received four withdrawal postcards from the claimant, one for each hearing number; the cards were postmarked March 2, 2005.

On March 7, 2005, an "Appeal Tribunal Decision - Withdrawal" was issued by the ALJ, Howard Lustig, for each of the four hearing numbers.

Based upon the overpayment associated with the work and wages and quitting determinations, departmental records reflect that overpayment collection notices were sent to the claimant on March 17, April 15 and May 15, 2005. Those records further reflect that on May 23, 2005, the claimant telephoned the collections department asking about the overpayment. Although the department representative indicated that she would contact the claimant after getting her file, she did not do so.

On June 14, 2005, department records further reflect that the claimant reopened a claim for unemployment insurance benefits after being laid off from another employing unit. On June 15, 2005, another collection notice was sent to the claimant regarding the overpayment. On June 18, 2005, two determinations were issued finding that the claimant had requalified from a week 50 of 2004 misconduct determination and from the week 47 of 2004 refusal without good cause determination

Departmental records reflect that on June 20, 2005, the claimant again contacted the collections department, saying that she had appealed everything and did not owe any money. After reviewing the claimant's file, on June 28, 2005, the collections department informed the claimant that she had withdrawn her appeals. Those records reflect that the claimant replied that, "she doesn't know anything about that and she's going to appeal again."

On June 30, 2005, the Milwaukee Hearing Office received two letters from the claimant, dated by her June 27 but postmarked on June 29, 2005, in effect, challenging the four determinations dealing with work and wages, the work and wages concealment, the quit and the quit concealment. The claimant also mentioned that she thought she had handled these matters in the past both with her weekly claims and the "2 or 3" law judges she saw in 2004.2(2)

The letters were forwarded to the commission for action and the first issue is how to treat the claimant's letters.

In Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004), the commission held that an "Appeal Tribunal Decision - Withdrawal", as currently formatted (3),  is an appealable document. The claimant's two letters thus were properly forwarded to the commission as petitions for review of the four withdrawal decisions.

Wis. Stat. § 108.09(6)(a) provides that the commission shall dismiss any petition not timely filed "unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner." A petition for commission review is timely if it is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. See Wis. Stat. § 108.09(6)(a).

Given the March 7, 2005 issuance date of the withdrawal decisions, the claimant's letters, postmarked June 29, 2005, were clearly late within the meaning of the above and the next issue is whether she has established probable good cause that the petitions were late for a reason beyond her control.

Just as in Glasschroeder, the commission concludes that the withdrawal decisions' failure to specifically explain appeal rights or a deadline constitutes a reason beyond the claimant's control for filing a petition late with the commission.

Next, given the Commission's jurisdiction over the review of these four withdrawal decisions, the standard in reviewing each of the withdrawal decisions is whether there was in fact a withdrawal and whether the claimant's request to retract met the requirements set forth by departmental rule. See Glasschroeder.

For all four hearings, the claimant returned the withdrawal postcards; thus meeting the first requirement. Next, the department's rule regarding withdrawals is found at Wis. Admin. Code § DWD 140.05(2) and it 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.

Because the claimant's written requests to retract were not within 21 days of the withdrawal decisions, the conditions set forth by the departmental rule are not met. The claimant's retraction requests thus fail to support retraction and the commission affirms the four withdrawal decisions.

The commission therefore finds that the claimant's petitions were filed late but that they were for a reason beyond the claimant's control, within the meaning of § 108.09(6)(a). The commission further finds that the claimant's requests for hearing were withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the claimant did not file requests to retract her withdrawals that 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 will not be reinstated and the Initial Determinations shall remain in effect.

Dated and mailed September 2, 2005
youngal . urr : 150 : 1  PC 718 PC 731  PC 749

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner



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Footnotes:

(1)( Back ) As an aside, a total of six hearings were scheduled for the claimant at this time. The two remaining hearings dealt with the claimant's appeal of a determination finding that she had been discharged for misconduct from MPS in week 50 of 2004 and the other was that she refused an offer of work with MPS in week 47 of 2004 and her refusal was not with good cause. Department records reflect that in each of the six cases an "Appeal Tribunal Decision - Withdrawal" was issued.

(2)( Back ) Department records reflect that the claimant had 13 hearings assigned to her in 2004, she withdrew from six of them (four of which the commission is currently dealing with) and the remaining seven dealt with the timeliness of an appeal, reasonable assurance and work available.

(3)( Back ) Since Glasschroeder was issued, the hearing offices have not made any apparent changes to the "Appeal Tribunal Decision Withdrawal" format. In the claimant's case, as in Glasschroeder, all four withdrawal decisions have "Not Applicable" written in the "Appeal Must Be Received or Postmarked By:" section. Additionally, the reverse of the form has an "APPEAL RIGHTS" section mentioning a 21-day appeal deadline and a "WITHDRAWAL DECISION" section explaining that such decisions are not appealable but that a request to retract a withdrawal and reinstate the prior request for hearing may be made in writing, stating the reason for retraction and received within 21 days from the date of the date of the withdrawal decision.

 


uploaded 2005/09/06