JULIE GIESEN, Employee
SCHUTT INDUSTRIES OF CLINTONVILLE WIS INC, Employer
A determination was issued finding that the employee quit a nonsubject employer and her quitting was not within any exception to allow for immediate benefit payment. The nonsubject employer was the United Methodist Church (Church) for whom the employee only worked part-time. The effect of the determination was to stop payment of benefits that the employee had been receiving based upon other employment.
The employee timely appealed but, prior to the hearing date, submitted two letters of withdrawal. A withdrawal decision was issued. Within 21 days of the issuance of a withdrawal decision, the employee submitted a retraction request.
On November 21, 2007, the administrative law judge denied the request by letter, pursuant to Wis. Admin. Code § 140.05. In particular, 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.
Wis. Admin. Code § DWD 140.05(4), directs an ALJ to "deny the request by letter" if the request does not establish "good cause."
In this case, the ALJ denied the retraction request finding that the employee had been provided the correct information, the employee failed to telephone the hearing office regarding hearing procedures, there was no evidence that her withdrawal was under duress or due to false information and she failed to establish why her alcohol abuse constituted good cause for the retraction.
On December 3, 2007, the employee filed two electronic petitions for commission review of the matter.
Matter for Review
The employee's petition for commission review is a request that the commission
review the October 3, 2007 withdrawal. In particular, the ALJ's November 21,
2007 letter is not an appealable document; it does not hold itself out as
appealable, does not set forth appeal rights or instructions and only indicates
that requests for LIRC review should be done under LIRC's own motion. Further,
the ALJ's November 21, 2007 letter is similar to that written
Younkin v. Mastec Contracting Co. Inc., UI Dec.
Hearing No. 05003623MD (LIRC December 15, 2005), disposing of a party's request
for a new hearing based upon that party's prior failure to appear. In Younkin
the LIRC similarly held that the letter did not constitute an appealable
decision where the letter was not on the standard decision form document, did
not provide a date of an "appeal deadline," and did not hold itself out as an
"Appeal Tribunal Decision." Additionally, the commission has consistently held
that the document used by the hearing offices to process a withdrawal
constitutes a "decision" with implicit appeal rights to the commission. (1)
Late Petition for Review
Despite the commission decisions finding that withdrawals are appealable decisions, the hearing offices have not altered the manner in which withdrawals are processed and no statutory/rule changes have been enacted dealing with this issue (i.e. defining "appeal tribunal decision").
Thus, while the employee's December 3, 2007 petitions for commission review were more than 21 days after the issuance of the withdrawal decision, the commission finds that the manner in which the withdrawal was issued constitutes a reason beyond control for the late petition.
Standard of Review for the Withdrawal
In Glasschroeder and its progeny, the commission uses Wis. Admin. Code § DWD 140.05(2) for guidance; 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.
The "21 day" Element
While the commission's approach to the 21 day receipt language has developed
over time, (2) in this case, the employee's original retraction request was within the 21 days and, thus, it met the standard.
The Good Cause Element
The employee established a monetary computation for drawing benefits on June 11, 2007; seven employing units fell within that base period. The employing unit with the largest percentage of wages was Schutt Industries of Clintonville (Schutt). None of the employing units in the base period were actually chargeable. Schutt was not charged because the employee quit her employment and requalified for benefits as of June 24, 2007 (week 26). (3) The employee began receiving benefits as of week 26 and reported limited wages with the Church.
When the employee's part-time employment with the Church ended in week 33 of 2007, the department conducted an investigation. The determination was issued to the employee and Schutt, indicating that the "employee quit a nonsubject employer" and the quitting was not within any exception to allow for immediate benefit payment. (4)
Shortly, after the employee's timely appeal of this determination, it became very clear that the employee did not understand the involvement of Schutt in this matter. Primarily in facsimile form, she continually questioned and objected to the involvement of Schutt. As part of this, she pointed out a failure of the hearing office to send a copy of the confirmation of timely appeal to the Church. She sought subpoena information and copies of the statutes. She did not receive any response to these inquires until September 28, 2007 when a hearing office support staff worker called the employee to explain the matter. The note in the hearing file is somewhat confusing, i.e. "Explained (or tried) that Schutt Ind. was ER involved, but Methodist Church was & they are NSW, which is why Schutt was listed on LID." At this point employee told the hearing office worker that the employee wrote a withdrawal letter the prior evening when she got drunk after ten years of sobriety. The notes reflect that the employee was told that the hearing office would process the withdrawal when it was received. The employee then faxed in a withdrawal, misstating that she was told Schutt was required to attend the hearing and reflecting a clear confusion about the process. On October 2, 2007, the Senior ALJ noted that he left the following message on the employee's answering machine,
The investigation will not be reopened, but the EE can have a hearing before an ALJ. Please call to verify if you want the hearing.
In response, the employee faxed another letter on October 2, 2007, stating her desire to withdraw and, again, saying that her separation from the Church was unrelated to Schutt. Although she was obviously still confused, the hearing office processed her withdrawal.
The department's policy of naming a base period employer as a party of interest in matter's involving nonsubject employing units is confusing to claimants. In this case, despite the employee's many faxes stating her misunderstanding that Schutt was a necessary party to the hearing, it does not appear that the policy was explained. More importantly, it does not appear that the hearing office clarified that: (1) while Schutt was named and had the option to appear, it would not be allowed to provide any evidence on the separation from the Church unless it had firsthand evidence regarding that matter, which was highly unlikely, and (2) unless specifically subpoenaed, the Church was not required to appear; however, if it did not, then only the firsthand evidence available at the hearing (likely the employee's evidence) would be used by the ALJ for the decision. Additionally, the employee was not put on notice that she should use the telephone for her questions instead of faxes and it does not appear that she was mailed the applicable statutory sections despite her request. These circumstances are sufficient to establish good cause for her retraction request.
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 late for a reason beyond her control within the meaning of Wis. Stat. § 108.09(6)(a), and
(3) the commission finds that under its review, the withdrawal retraction requirements set forth by Wis. Admin. Code § DWD 140.05 have been met.
The withdrawal decision of the administrative law judge is set aside. Accordingly, a hearing will be scheduled as soon as possible.
Dated and mailed January 18, 2008
gieseju . urr : 150
PC 749
James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc: United Methodist Church
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]