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

BILL V DUNHAM, Claimant

AFSCME LOCAL 1942, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002844MD


PROCEDURAL HISTORY

Departmental records reflect that the claimant completed an initial claim for unemployment insurance benefits on June 13, 2006. Those records further reflect that an adjudicator interviewed him on July 5, 2006; she questioned him about his separation of employment from University of Wisconsin Hospital & Clinic (Hospital) and from AFSCME Local 1942 (Union).

On July 6, 2006, an initial determination was issued by the adjudicator finding that the claimant quit his employment with the Union in the calendar week ending May 20, 2006 and his quitting was not within any exception to allow for the immediate payment of benefits. The determination had an appeal deadline of July 20, 2006 and provided,

NO BENEFITS ARE PAYBABLE FROM 05/14/06 THROUGH 06/17/06 AND UNTIL THE EMPLOYEE EARNS WAGES AFTER THE WEEK OF THE QUIT EQUALING AT LEAST $1,364.00 IN COVERED EMPLOYMENT.

On July 7, 2006, the adjudicator issued another determination finding that the claimant terminated his employment with the Hospital in the calendar week ending May 20, 2006 (week 20) and the quitting was not for a reason which would allow the immediate payment of benefits. The determination had an appeal deadline of July 21, 2006 and provided the same effective language set forth above.

On July 21, 2006, the claimant faxed an appeal letter to the Madison Hearing Office. The Madison Hearing Office treated the letter as a timely appeal to the determination dealing with the Hospital and as a late appeal of the determination denying him benefits based upon the separation of employment with the Union.

On July 25, 2006, the claimant was mailed a confirmation of timely appeal regarding the Hospital, which was assigned hearing number 06002843MD, and a confirmation of late appeal regarding the Union, which was assigned hearing number 06002844MD. Enclosed with the late appeal confirmation was a questionnaire asking why the claimant's appeal was late. Both the late appeal confirmation letter and the questionnaire directed the claimant to return the completed questionnaire within seven days; warning him that if he did not do so, his appeal would be dismissed. The claimant did not return the questionnaire timely.

On July 28, 2006, a hearing notice was sent to the claimant apprising him of the August 8, 2006 hearing regarding the issue of his separation of employment from the Hospital. On August 8, 2006, only the claimant and his representative appeared before an administrative law judge for the hearing scheduled regarding the Hospital separation.

On August 9, 2006, an appeal tribunal decision for hearing number 06002844MD was issued dismissing the claimant's late request for a hearing involving the Union, citing the claimant's failure to provide a reason for filing the appeal late. The dismissal decision indicated that the determination would remain in effect and that an appeal needed to be received or postmarked by August 30, 2006.

On August 18, 2006, the administrative law judge, who conducted the hearing involving the claimant's separation of employment with the Hospital, issued a decision reversing that determination, finding that the claimant terminated his work with the Hospital in week 20 of 2006, his quitting was with good cause attributable to the employer and he was "eligible for benefits if otherwise qualified."

On October 6, 2006, the Madison Hearing Office received a letter from the claimant requesting a late appeal of the determination involving the Union. Enclosed with the letter was the questionnaire mailed to the claimant on July 25, 2006. The hearing office forwarded the letter to the Labor and Industry Review Commission (the commission) as a late petition for commission review. (1)

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 claimant's October 6, 2006 correspondence repeatedly denies that he was an employee of the Union. (2)   In the correspondence, the claimant wrote the following, in relevant part and with underlining for emphasis:

. . . I never understood myself to be an employee of the Union. I feel I made this clear to the Interviewer and, of course, assumed that the Union would confirm this. Therefore, I assumed that my claim against my actual employer was still valid and that I would receive benefits based upon my income from said employer. Since I received only about 3 percent  (3)   of my "income" from lost-time reimbursements, I thought my benefits would be reduced accordingly. . .

Two forms were mailed to me from the Madison Hearing Office on July 25, 2006. One a confirmation of Timely Appeal regarding my employment at UW Hospital (ID No. 060330782MD; Hearing No. 06002843MD; and UI Account No. 697729 JA), the other a Confirmation of Late Appeal regarding my alleged "employment" by AFSCME Local 1942 (ID No. 060327482; Hearing No. 06002844MD; UI Accnt. No. 668092). However, I never appealed the later one. . . Because the letter of appeal which I wrote regarding my employment at UWHC (citing an ID number specific to that employer) was attached by your office to the notice of the "late" appeal regarding a different employer, (which, again, had different ID, Account and Hearing numbers) I assumed that this was simply a mistake or formality and had no bearing on my unemployment claim where my Hospital job was concerned (whom I still understood to be my sole employer for the past 6 years). . .

I never understood the fact that If [sic] didn't appeal regarding my alleged "employment" with the Union that I would somehow forfeit my claim in relation to the hospital. . . I assumed, with good reason, I believe, that since I was never actually an employee of the Union (AFSCME Local 1942) that I would receive reduced benefits based upon my employment with UW Hospital. This is the reason I am filing this appeal at this time. . .

The first issue to be decided is whether the claimant's October 6, 2006 correspondence should be treated as a petition for commission review.

The claimant seeks his October 6, 2006 correspondence to be treated as a late appeal of the July 6, 2006 determination. Yet, his earlier correspondence, dated July 21, 2006 was already processed as a late appeal to the determination. The commission does not find that the hearing office's actions in processing the July 21, 2006 correspondence in this manner to be error. Specifically, while the appeal letter later specifically references the Hospital determination, it also begins with,

This letter is an appeal to the determination by the Department of Workforce Development Division of Unemployment Insurance, that no benefits are payable from 5/14/06 through 6/17/06.

Both the Union determination and the Hospital determination imposed the same suspension of benefits independently. If one were reversed without the other, the suspension would remain in effect. While the claimant's October 6, 2006 correspondence reflects an understanding that they were "separate issues," he erroneously believed that the union decision only reduced his eligibility. Yet, this belief is contrary to the effective language on the determination. More importantly, the claimant admitted that he knew the hearing office treated his letter as a late appeal to the union issue. The claimant did not object at that time, did not question the hearing office regarding its actions and ignored the questionnaire, continuing the erroneous assumptions about its effect. Not only could the claimant have clarified this situation by telephone but he could have questioned the administrative law judge regarding the matter when he attended the Hospital hearing on August 8. The digital record of that hearing reflects no such inquiries. Then after the dismissal decision was mailed to the claimant on August 9, he did not attempt to appeal the matter timely.

Under these circumstances, the commission concludes that the claimant's October 6, 2006 letter requesting an appeal is a petition for commission review in this matter. Wis. Stat. § 108.09(6) provides, as follows:

Commission Review. (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).

(b) Within 28 days after a decision of the commission is mailed to the parties, the commission may, on its own motion, set aside the decision for further consideration and take action under par. (d).

(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within 2 years from the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d). The commission may set aside any final determination of the department or any decision of an appeal tribunal or of the commission at any time, and take action under par. (d), if the benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the commission 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.

(d) In any case before the commission for action under this subsection, the commission may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence as to such matters as it may direct, or it may remand the matter to the department for further proceedings.

Since the claimant's petition was not received within 21 days, the second issue is if probable good cause exists that the reason for having failed to file the petition timely was beyond the claimant's control within the meaning of Wis. Stat. § 108.09(6)(a). (4)

In Rhodes v. Rural Mutual Insurance Co., UI Dec. Hearing No. 99402128GB (LIRC December 17, 1999), the commission explained this language, as follows:

The "probable good cause" standard does not refer to the legal standard to be met for a late petition, however; rather, it concerns the quantum of evidence that must be presented. The legal standard for a late appeal is "reason beyond control"; that is, unless an appeal was late for a reason beyond the appellant's control, dismissal is required by the statutes.

In Rhodes, the commission held that the confusion of an employer's representative regarding the petition deadline surrounding a holiday weekend was not reason beyond control. Similarly, a petitioner's decision to file late because she was waiting for OSHA documentation to support her claim was not a reason beyond control; once she knew the documentation would not be available timely, she had an obligation to file the petition timely and then supplement the record when she obtained it. Trego v. Seagull Aviation Parts Inc., UI Dec. Hearing No. 02403884AP (LIRC March 7, 2003). Finally, a claimant who did not petition timely due to an inability to read well failed to establish that her failure was for a reason beyond her control as she should have made arrangements to enable her to respond timely. Hubanks v. BSG Maintenance Corporation, UI Dec. Hearing No. 99601362MW (LIRC May 26, 1999).

The claimant's failure to timely appeal was due to his incorrect assumptions that he was not an employee and that the July 6, 2006 determination would not ultimately affect his eligibility for benefits. His assumptions were without merit and could have been easily clarified, on multiple occasions, had he contacted the hearing office. As such, his petition was not late for a reason beyond his control

The final decision for the commission is whether the commission should take action under Wis. Stat. § 108.09 (6)(c) and, if so, the nature of the action under Wis. Stat. § 108.09 (6)(d).

In Rouse v. Holiday Inn of Rhinelander (Corrected), UI Dec. Hearing No. 98201932RH (LIRC June 7, 1999), the commission explained that, pursuant to Wis. Stat. § 108.09 (6)(c) and (d), the commission may set aside a decision upon grounds of any type of mistake the commission deems sufficient for such action. Specifically, in Rouse, the commission stated:

The statute has no language limiting the term "mistake." Courts have held that the term includes mistakes of fact as well as mistakes of law; e.g., La Crosse Footwear v. LIRC, 147 Wis. 2d 419, 434 N.W.2d 392 (Ct. App. 1998).

The determination at issue generically held that the employee's quitting was not within any exception to allow for immediate benefit payment. Departmental records reflect that the employer's information to the adjudicator reflected uncertainty as to whether the employee quit or was discharged. Departmental records further reflect that the employee informed the adjudicator that he worked part-time for the union representing workers at the Hospital business; he indicated he quit his employment with the union but also indicated that union employment necessarily ended when the Hospital employment did.

Based upon this investigation, the commission finds that it was error for the determination not to make a finding on the specific issue of a quit or discharge and the apparent failure, given the quit conclusion, to investigate whether the quitting exception found at Wis. Stat. § 108.04(7)(n)  (5)  applied.

The commission therefore finds that the petition for commission review was not timely and that the petitioner has not shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

The commission further finds that pursuant to Wis. Stat. § 108.09 (6)(c), it has jurisdiction to act under Wis. Stat. § 108.09 (6)(d), in the above matter.

DECISION

The dismissal decision, late appeal and initial determination are set aside. Accordingly, the matter is remanded to the Department for new investigation and determination regarding the nature of the separation of employment with the Union and, if it is determined to be a quitting, whether the exception found at Wis. Stat. § 108.04(7)(n) applies. In the hearing regarding the employee's separation from the Hospital, the employee testified that he resigned his position with the Union approximately two weeks prior to the termination with the Hospital.

Dated and mailed November 30, 2006
dunhabi . urr : 150 : 2  PC 711   PC 731 PC 740

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: On October 26, 2006, the commission received a letter from the claimant requesting the opportunity to file a brief and obtain copies of the hearing file. Wisconsin Administrative Code provision § LIRC 1.07 provides, in relevant part, that:

The commission may deny a request to file a brief which is not made in a petition or answer if the commission has already reviewed the case but not yet issued its decision at the time the request was made.

The commission did not grant the claimant's request. The denial is based upon review of this matter and the decision to remand for a new determination, essentially giving the employee another opportunity to present evidence in this matter. However, attached to the claimant's copy of this decision are copies of both his statement to the adjudicator and the employer's statement to the adjudicator.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) Although the employee subsequently requested the opportunity to submit a brief in this matter, the request was not granted for the reasons explained at the end of this decision.

(2)( Back ) Wis. Stat. §108.02(12)(a) creates a presumption that an individual performing services for pay from an employing union is an "employee." In this case, the claimant was paid wages for his services by AFSCME Local 1942, an employing unit with its own unemployment insurance account number. As such, the claimant's assertion that he was not an employee lacks merit and does not justify further investigation.

(3)( Back ) Departmental records reflect that the wages paid by the Union constitute 4.779 percent of his base period wages.

(4)( Back ) Late for a "reason beyond control" is the standard that is applied to a late appeal of a determination. See Wis. Stat. § 108.09(4)(c). This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Dec. Hearing No. S9900245MW (LIRC March 22, 2000).

(5)( Back ) Wis. Stat. § 108.04(7)(n) provides, that the quitting disqualification does not apply to an employee who:

1. Terminated work in a position serving as a part-time elected or appointed member for a governmental body or representative of employees;

2. Was engaged in work for an employing unit other than the employing unit in which the employee served under subd. 1. at the time that the employee terminated work under subd.1.; and

3. Was paid wages in the terminated work constituting not more than 5% of the employee's base period wages for purposes of benefit entitlement.

 


uploaded 2006/12/04