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

DENNIS R TAYLOR, Employee

PIONEER METAL FINISHING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07400980GB


PROCEDURAL HISTORY


On April 14, 2007, a determination was issued finding that as of the calendar week ending April 7, 2007 (week 14), the employee was discharged for misconduct connected with his employment. The "EFFECT" section of the determination explained that due to the misconduct finding,

(1) the base period wages the employee earned with the employer prior to discharge could not be used to compute the maximum benefit amount for this claim of benefits by the employee or any subsequent claim,

(2) the employee was not eligible for benefits from April 1, 2007 through May 26, 2007 and until the employee earned wages equaling at least $4,158.00 in covered employment, and

(3) thereafter, the employee might be eligible for benefits if he had another base period employer from which benefits were payable.

The employee timely appealed and an in-person hearing was scheduled for Tuesday May 8, 2007 at 8:45 a.m. in Green Bay, Wisconsin. On April 30, 2007, hearing notices were mailed to both the employer and employee, with hearing number 07400980GB assigned to the issue. The front of the hearing notice directed the parties to the reverse side for important information. The reverse side of the hearing notice explained, in relevant part, that

Only the appellant may withdraw an appeal. A withdrawal means that the determination remains in effect.

On May 7, 2007, the Fox Valley Hearing Office received a withdrawal postcard, originally mailed to the employee with his hearing information. The employee signed and returned the postcard, indicating that he no longer wanted a hearing and understanding that if he returned the card, "the hearing will not be rescheduled and the Initial Determination will become final."

On May 8, 2007, Administrative Law Judge (ALJ) Bradley issued an "APPEAL TRIBUNAL DECISION WITHDRAWAL" (withdrawal), indicating that the employee had withdrawn his request for a hearing. The withdrawal was mailed to the employee's address of record. The front page explained "NOT APPLICABLE" in the "Appeal Must Be Received or Postmarked By" section. The reverse side contained an "APPEAL RIGHTS" section mentioning a 21-day appeal deadline for the "attached decision;" while the following appeared under the "WITHDRAWAL DECISION" section:

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.

On June 12, 2007, the Fox Valley Hearing Office received a letter from the employee, postmarked June 11, 2007. The letter requested an appeal of his withdrawal and a new appeal hearing. The letter further explained that the employee was in his tenth week of unemployment and, that although he was seriously attempting to secure employment, he was unsuccessful. He further indicated that he had proof of all his attempts to secure employment.

Because the employee's correspondence was received over 21 days after the issuance of the withdrawal, the correspondence was forwarded to the commission for review.

Since Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004), the commission has held that an "Appeal Tribunal Decision - Withdrawal", as formatted, is an appealable document. (1)

Wis. Stat. § 108.09(6)(a) 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). [(2)]

Further, while the commission has consistently held that the withdrawals as currently formatted, constitute a reason beyond control for a late appeal, the department has not altered the format of such decisions. Id.

Thus, the employee's petition requesting retraction of his withdrawal was late for reason deemed to be beyond the petitioner's control and the issue before the commission is whether the employee should be allowed to retract his withdrawal.

Glasschroeder defined the scope of the commission's review in such matters to be limited to: (1)  whether there was a withdrawal,  (2)  if so, whether there was a request to retract the withdrawal meeting the requirements of Wis. Admin. Code § DWD 140.05, and  (3)  if so, whether there was "good cause" for the retraction request.

The employee's retraction request was not received within the 21-day deadline set forth in of Wis. Admin. Code § DWD 140.05(2). The commission has generally denied granting retraction requests received after the 21-day deadline, where the determination was clear in its explanation of effect. (3)   Such is the case in this matter; the determination was clear in its explanation of the effect upon the claimant's benefit situation. Additionally, the employee did not claim any good faith misunderstanding; instead, it appears that he sought the retraction after his unemployment continued longer than expected. For these reasons, the commission declines to grant the employee's retraction request as it was not timely, the determination was clear as to its effect on his benefit claim and the retraction request itself fails to establish good cause.

The commission therefore finds that the employee's petition was filed late but that it was late for a reason beyond the employee's control, within the meaning of § 108.09(6)(a).

The commission further finds that the employee's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the employee did not file a request to retract his withdrawal that met the requirements of Wis. Admin. Code § DWD 140.05(2).

DECISION

The withdrawal decision of the administrative law judge is affirmed. Accordingly, the request for hearing will not be reinstated and the May 8, 2007 withdrawal decision shall remain in effect.

Dated and mailed July 23, 2007
taylode . urr : 150 : PC 718   PC 749

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner




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Footnotes:

(1)( Back ) See Young v. Milwaukee Public School and Food Team Suite 730, UI Dec. Hearing Nos. 4611502MW, 04611503MW, 04611504MW and 04611505MW (LIRC September 2, 2005); Wambold v. Apple Steel Rule Die Co. Inc., UI Dec. Hearing No. 05605371MW (LIRC November 23, 2005); Brewer v. Radtke Contractors Inc., UI Dec. Hearing No. 06400442AP (LIRC June 21, 2006); Behnke v. Royal Pets Inc., UI Dec. Hearing No. 04005276MD (LIRC October 31, 2006), Lettie v. Birchwood Lodge Rental Services Inc., UI Dec. Hearing No. 06402814AP (LIRC February 8, 2007), Luckett v. Independence First Inc., UI Dec. Hearing No. 06004487MD (LIRC February 8, 2007) and Steffes Construction, UI Contribution Liability Dec. Hearing Nos. S0400078MD and S0400163MD (LIRC February 12, 2007).

(2)( Back ) Wis. Stat. §108.09(6)(d) provides that once the commission has jurisdiction of a matter, it 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.

(3)( Back ) See Young, Wambold and Brewer.


uploaded 2007/07/24