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

JULIE GIESEN, Employee

SCHUTT INDUSTRIES OF CLINTONVILLE WIS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07402172AP


PROCEDURAL HISTORY

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.


DECISION

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



 

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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), Steffes Construction, UI Contribution Liability Dec. Hearing Nos. S0400078MD and S0400163MD (LIRC February 12, 2007) and Taylor v. Pioneer Metal Finishing Corp., UI Dec. Hearing No. 07400980GB (LIRC July 23, 2007).

(2)( Back ) 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 retraction denials exclusively referenced the 21-day "deadline." Then, in Behnke v. Royal Pets Inc., UI Dec. Hearing No. 04005276MD (LIRC October 31, 2006), the commission denied a retraction request, citing the fact that it was received over 21 days after the withdrawal, but stating that the "more important" factor was that the letter failed to establish good cause for the retraction request. In Luckett v. Independence First Inc., Hearing No. 06004487MD, UI Dec. Hearing No. 06004487MD (LIRC February 8, 2007, the commission granted a retraction request that was received after 21 days where the retraction request was reasonably prompt after the employee learned the effect of her actions.

(3)( Back ) On June 12, 2007, a determination was issued finding that the employee quit Schutt and her quitting was not within any exception. On July 17, 2007, a determination found that as week 26 of 2007, the employee met the requalification requirements.

(4)( Back ) The "Introduction" to Part VIII, Chapter 2: Adjudication Mechanics - Employer Party of Interest of the Disputed Claims Manual, Volume 3, (dated June 18, 2007), provides that

The employer party of interest on a written determination is the employer whose interests may be adversely affected by an agency decision regarding the claimant's eligibility for benefits. It may be the employer who is a party to the issue or a currently/future liable employer. An employer is consider[ed] to be a party of interest even though benefits are chargeable to the balancing or administrative accounts.

Further, in part I of Chapter 2, the manual provides that if the separating employer is nonsubject and the non-liable employing unit raises the issue, "the WI base period employer with the largest percentage of liability is the employer party of interest."

 


uploaded 2008/02/04