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

DARCIE J LETTIE, Employee

BIRCHWOOD LODGE RENTAL SERVICES INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402814AP


PROCEDURAL HISTORY

On November 6, 2006 (week 45), departmental records reflect that the employee initiated a claim for unemployment insurance benefits. She reported a discharge from the employer and subsequent layoffs from two additional employing units.

Because Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who has been discharged for misconduct connected with the employment, (1) an investigation was scheduled with an unemployment insurance adjudicator to resolve the issue of whether the employee's discharge from the employer, Birchwood Lodge Rental Services, was for misconduct connected with her employment.

Departmental records reflect that the adjudicator unsuccessfully attempted to contact both the employee and the employer by telephone on November 7, 2006. That day, the adjudicator mailed the employee a letter asking that she contact the adjudicator within the next seven days. The letter warned, in part,

If I do not hear from you within 7 days of the above date, the issue will be resolved based on the best available information. Failure to respond could result in the denial of unemployment insurance benefits.

The adjudicator also mailed the employer a questionnaire requiring a response by November 14, 2006.

On November 9, 2006, departmental records reflect that the employer returned the November 7 questionnaire and attached additional pages to support its claim of misconduct.

Departmental records for the unemployment insurance weekly claiming system reflect that the employee completed her week 45 claim for unemployment insurance benefits on November 12, 2006. On November 13, 2006, the department also received the employer's completed separation notice.

On November 18, 2006, the determination was issued finding that in the calendar week ending June 24, 2006 (week 25), the employee was discharged for misconduct connected with her employment. However, the determination found that the employee had requalified for benefits. Specifically, the determination explained:

AS OF 11/05/06, AT LEAST SEVEN WEEKS HAVE ELAPSED AFTER THE WEEK OF THE DISCHARGE AND SHE HAS EARNED WAGES IN COVERED EMPLOYMENT EQUALING AT LEAST $ 2226.00.

EFFECT

BASE PERIOD WAGES FROM WORK FOR THE EMPLOYER PRIOR TO THE DISCHARGE CANNOT BE USED TO COMPUTE THE MAXIMUM BENEFIT AMOUNT FOR THIS OR ANY LATER CLAIM.

NO BENEFITS ARE PAYABLE FROM 06/18/06 THROUGH 11/04/06. THE EMPLOYEE MAY BE ELIGIBLE THEREAFTER IF SHE HAS ANOTHER BASE PERIOD EMPLOYER FROM WHICH BENEFITS ARE PAYABLE. IF BENEFITS ARE PAYABLE, A SEPARATE MONETARY COMPUTATION WILL BE ISSUED.

After the misconduct determination, departmental records reflect that an amended monetary computation was generated to determine the benefits available to the employee after excluding that wages she had earned with the employer. The amended computation reflected that the employee had a maximum weekly benefit rate of $159.00 but only had maximum benefits available of $102.00. The entire benefits available were paid to the employee on November 20, 2006 for her week 45 of 2006 claim. Her claim was then exhausted.

After the issuance of the misconduct determination, departmental records reflect that the employee spoke with the adjudicator regarding her discharge. At that time, it was agreed that, if her statement did not result in a redetermination in her favor, it would be processed as an appeal to the determination.

On November 26, 2006, department records reflect the employee completed weekly claims for benefits for the calendar weeks ending November 18 and 25, 2006 (week 46 and 47). Yet, because her claim was exhausted, no benefits were paid for those weeks.

The determination was not altered and department records reflect that a confirmation of timely appeal was mailed to the parties on November 27, 2006, based upon the employee's statement to the adjudicator.

In preparation of the hearing involving the discharge issue, departmental records reflect that a "HEARING INSTRUCTIONS AND DOCUMENT PACKET" was mailed to the employee and employer consisting of the employee's statement to the adjudicator and the documentation submitted to the adjudicator by the employer during the investigation.

Contained within the hearing file created by the Fox Valley Hearing Office (FVHO) is a contact log. Departmental records reflect the first entry in that log under the headings of date, time, by and remarks is:

12/1 3:00 TC  EE called to say that she does not have time to do this and would like to withdraw. Explained to her that the original determination will remain in effect.

In response to that contact, a withdrawal was issued on December 1, 2006, signed by Administrative Law Judge Zuberbier. The withdrawal indicated that the employee withdrew her request for a hearing and that the initial determination remained in effect. It further provided, "NOT APPLICABLE" in the appeal deadline section while the reverse side of the withdrawal decision contained the following information

A party cannot appeal a withdrawal decision. However, the appellant may submit a request to retract the withdrawal and to reinstate the prior request for hearing. This request must be in writing, must be received within 21 days from the date of the withdrawal decision and must include the reasons for the retraction.

Departmental records reflect that the remaining entries in the FVHO contact log provide as follows under the headings of date, time, by and remarks:

12/15 9:30 Sal EE called asking about her benefits. Explained she w/t. She said she was told she would receive $102. She had talked to K. Somers. Gave her K. Somers #.

12/15 9:50 Sal EE called to see if she could retract her w/t. Told her to send in letter of explanation.

The department's computer comment records also reflect a December 15 entry recorded as being made by K. Somers; the entry provides, in relevant part, as follows:

CLMT CALLED SAYING SHE W/D APPEAL SO WBR [weekly benefit rate] WOULD GO FROM $102 TO $159 AND NOW SHE HAS NOT GOTTEN A CHECK. SHE THOUGHT THAT SHE HAD TO WITHDRAW HER APPEAL TO GET CHECKS? SHE AGREED THAT I DID NOT TELL HER TO W/D HER APPEAL BUT THAT SHE THOUGHT THAT SHE HAD TO. CLMT WAS ADVISED TO RE-APPEAL DECISION. SHE IS VERY CLEARLY CONFUSED BUT CAN'T TELL ME WHY SHE THOUGHT SHE NEEDED TO W/D APPEAL.

On December 26, 2006, the FVHO received a letter from the employee indicating that she wished to "reappeal" her case with the employer. Her letter was postmarked December 22, 2006 and further indicated,

When I called the Fox Valley Hearing Office to stop the hearing the first time, I asked them if I still could collect unemployment. The lady told me that I could still collect unemployment even though I closed the case.

Wis. Admin. Code § DWD 140.05 Withdrawal of appeal and retraction, provides

(1) An appellant may withdraw its appeal at any time before the issuance of a decision on the merits by notifying the hearing office or by choosing not to continue to participate in a hearing. The administrative law judge shall issue a withdrawal decision after determining that an appeal has been withdrawn.

(2) An appellant may submit a request to retract its withdrawal and reinstate its appeal. The retraction request 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.

(3) If the hearing office receives a timely retraction request before the issuance of a withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall acknowledge the request by letter to the appellant. If a timely retraction request is received by the hearing office after issuance of the withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall issue a decision setting aside the withdrawal decision and the hearing office shall schedule another hearing.

(4) If the hearing office receives a retraction request before or after the issuance of a withdrawal decision and the request does not establish good cause for the retraction, the administrative law judge shall deny the request by letter to the appellant.

Had the employee's letter been received by the hearing office within 21 days of the issuance of the withdrawal decision, the ALJ would have had authority to act on the request pursuant to Wis. Admin. Code § DWD 140.05. Since the request was received after 21 days, the matter was properly forwarded to the Labor and Industry Review Commission (commission). In particular, 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 formatted was an appealable document. Thus, the employee's letter is a petition for review of the withdrawal decision.

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). In this case, the employee's request for review was timely and the Commission has jurisdiction to review this matter.

Next, Glasschroeder defined the scope of the commission's review in withdrawal cases to the specific issues arising under the standards created by the department's rule. Wis. Admin. Code § DWD 140.05(2) 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.

Recently, in Behnke v. Royal Pets Inc., UI Dec. Hearing No. 04005276MD (LIRC October 31, 2006), the commission in its review of a withdrawal decision denied a retraction request, filed over 21 days after the withdrawal, because the letter failed to establish good cause for the retraction request. Previously, in Young v. Milwaukee Public School and Food Team Suite 730, UI Dec. Hearing Nos. 04611502MW, 04611503MW, 04611504 MW and 04611505MW (LIRC September 2, 2005), Wambold v. Apple Steel Rule Die Co. Inc., UI Dec. Hearing No. 05605371MW (LIRC November 23, 2005), and Brewer v. Radtke Contractors Inc., UI Dec. Hearing No. 06400442AP (LIRC June 21, 2006), the commission's denials exclusively referenced the 21 day "deadline" after explaining the procedural history. Yet, in each of those three earlier cases, the claimants explicitly appealed the determinations and the determinations were clear in the effect upon each unemployment benefit claim.

In this case, the employee acted relatively promptly in seeking to retract her withdrawal. Her retraction request, while not received within 21 days, was postmarked on the 21st day. However, the Commission finds that her request, in light of departmental records, fails to establish good cause. In particular, the initial determination was clear in its explanation that a misconduct finding removed the base period wages that the employee earned with the employer from her computation of maximum benefits available; by removing those wages, the employee had less available from which to base her unemployment claim upon. In fact, as of the first claim week, week 45, she received only $102, exhausting all benefits available under that benefit year. This fact, together with the above mentioned departmental records reflecting various claims by the employee regarding the reasons for her withdrawal lead to the Commission's conclusion that good cause for the retraction has not been established.

The commission therefore finds that

(1) the employee's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a),

(2) the employee's petition for commission review was timely, within the meaning of Wis. Stat. § 108.09(6)(a), and

(3) the employee's retraction request does not meet the requirements of Wis. Admin. Code § DWD 140.05(2) for the commission to order a retraction of the withdrawal.


DECISION

The withdrawal decision of the administrative law judge is affirmed. Accordingly, the request for hearing will not be reinstated and the Initial Determination shall remain in effect.

Dated and mailed February 8, 2007
lettida2 . urr : 150 : 1  PC 718  PC 749

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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Footnotes:

(1)( Back ) Specifically, a worker who has been discharged for misconduct is ineligible for benefits until seven weeks have elapsed since the week of discharge and the worker has earned 14 times his or her weekly benefit rate in subsequent cover wages. Additionally, base period wages from work for the employer prior to the discharge cannot be used to compute the maximum benefit amount for this or any later claim.

 


uploaded 2007/02/12