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

KIRBY L YOUNKIN, Employee

MASTEC CONTRACTING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003623MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A letter was subsequently filed by the employer asking that the matter be reopened and has been treated as an attempt to petition for review.

Procedural History

The original hearing on the merits was scheduled for June 16, 2005. Neither party appeared and the matter was dismissed. The employee wrote a letter explaining his failure to appear. On July 12, 2005, the dismissal decision was set aside in order for a hearing to be held on the failure to appear issue. The hearing was held on July 28, 2005 and on August 8, 2005, an ALJ issued a decision finding good cause for the employee's failure to appear and directing that a hearing on the merits be scheduled.

The "new" hearing on the merits was scheduled for August 29, 2005 by telephone with another ALJ. Only the employee/appellant appeared at the hearing. On August 30, 2005, the appeal tribunal decision was issued allowing benefits to the employee. Within 21 days, the employer submitted a letter explaining its failure to appear, claiming it did not receive the hearing notice, and requesting that a new hearing be scheduled with the employer's agent listed as address of record.

On September 16, 2005, the ALJ "disposed" of the employer's good cause letter by letter. He did not amend or set aside his August 30, 2005 decision and did not hold a hearing on the failure to appear issue. His letter cited the good cause standard from the statutes. He also cited information regarding previous departmental mailings, concluding that the employer did not meet that standard. The ALJ indicated the employer could pursue the matter further by "filing a petition" for review by the Labor and Industry Review Commission (LIRC) within 21 days of September 16, 2005. The employer did so by letter dated September 28, 2005.

Timeliness of Petition for Review

Wis. Stat. § 108.09(6)(a) provides for Commission review as follows:

(a) The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition 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. The commission shall dismiss any petition if 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. If the petition is not dismissed the commission may take action under par. (d).

The initial issue before the commission is whether the ALJ's September 16, 2005 letter is an appeal tribunal decision subject to review by the Commission.

In Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004), the commission engaged in the following analysis to determine whether a form issued by an ALJ as a "Withdrawal Decision" was actually an appealable document:

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.

The ALJ's September 16, 2005 letter is not on the standard decision form document, does not actually give the date of the "appeal deadline," and does not hold itself out as an "Appeal Tribunal Decision." For these reasons, the commission declines to treat the September 16, 2005 letter as an "appeal tribunal decision" subject to review pursuant to Wis. Stat. § 108.09(6)(a).

As such, the only appealable document that the employer is attempting to petition is the original August 30, 2005 appeal tribunal decision. Yet that decision had a September 20, 2005 appeal deadline and the employer's request for commission review is dated September 28, 2005.

Wis. Stat. § 108.09(4)(e)3 provides, in relevant part and with emphasis added,

. . . If the respondent delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision unfavorable to the respondent is mailed under subd. 1., the appeal tribunal may set aside the original decision and the department may schedule a hearing concerning whether there was good cause for the respondent's nonappearance. The department may also provisionally schedule a hearing concerning any matter in the determination. If the original decision is not set aside, the appeal tribunal may on its own motion amend or set aside that decision within 21 days after the decision concerning whether there was good cause for the respondent's nonappearance is mailed under subd. 1. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and, if necessary, reinstating the decision which was set aside. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation establishes good cause for nonappearance, the same or another appeal tribunal established by the department for this purpose shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under sub. (3)(b) after conducting a hearing concerning any matter in the determination. If such a 2nd hearing is held concerning any matter in the determination, the appeal tribunal shall only consider the testimony and other evidence admitted at that hearing in making a decision.

The next issue before the commission is whether the September 28 petition was late for a reason beyond the employer's control.

When the employer initially submitted a letter regarding its failure to appear to the administrative law judge, the ALJ did not set aside his appeal tribunal decision or amend it. By not doing so and instead by responding to the employer by letter, a nonappealable document, he effectively deprived the employer of an ability to petition his "informal decision" by letter on the failure to appear. He further indicated that the employer could appeal his letter within 21 days but there is no statutory support to treat his letter as an appealable document. Instead, the employer's September 28, 2005, letter must be treated as a late petition for commission review. The commission further finds that the petition was late for a reason beyond the employer's control, namely the ALJ's decision to issue a letter instead of an appealable decision.

Failure To Appear Issue

The employer attributes its failure to appear to the fact that it did not receive a copy of the hearing notice. On its face, this would establish probable good cause for the failure to appear and, consequently, the commission issues the following:

ORDER

Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission

(1) sets aside the August 30, 2005, appeal tribunal decision pending resolution by an administrative law judge of the failure to appear issue, and

(2) directs that a hearing be scheduled on the failure to appear issue; this hearing may necessitate a department witness for the failure to appear issue as it relates to the employer's address of record as of the time of the hearing notice.

Dated and mailed December 15, 2005
younkki . urr : 150 : 1  PC 712.9  PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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Footnotes:

(1)( Back ) Footnote omitted.

 


uploaded 2006/01/03