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

GERALDINE WATSON, Employee

CITY OF MILWAUKEE, Employer
c/o TALX CORP

UNEMPLOYMENT INSURANCE DECISION
Hearing Nos. 8605996


PROCEDURAL HISTORY


On September 3, 2008, determination number 080564364 was issued, finding that as of week 27 of 2008, the week ending July 5, 2008, the employee quit her employment but her quitting was not within any exception to allow for the immediate payment of unemployment insurance benefits.

On September 8, 2008, determination number 080577814 was issued, finding that as of week 35 of 2008, the week ending August 30, 2008, the employee was not able to work and/or not available for work.

The employee timely appealed both determinations and both hearings were scheduled to be held in person on Tuesday, September 23, 2008 at 9:30 a.m. Hearing number 08605912MW was assigned to the separation of employment issue. Hearing number 08605996MW was assigned to the able to work and available for work issue.

On September 19, 2008, a note in the hearing file reflects that the employee telephoned requesting to withdraw her appeals "on the advice of her attny, as they feel she w/not win." Based upon this contact, a withdrawal was issued on September 19, 2008 under each hearing number. The withdrawals issued in this case do not say, "WITHDRAWAL" on the top of the page but indicate, "Appeal Tribunal Decision" in upper right hand corner. The "DECISION" portion of the withdrawals issued on September 19, 2008 indicate, "THE REQUEST FOR HEARING IS WITHDRAWN. THE INITIAL DETERMINATION REMAINS IN EFFECT." Also, in the, "Appeal Must Be Received or Postmarked By:" section, it indicates, "NOT APPLICABLE."

On November 18, 2008, the Milwaukee Hearing Office received a letter from the claimant seeking to retract her withdrawal of her appeals in these matters. On November 20, 2008, the ALJ denied her retraction requests citing the fact that the requests were not timely.

The employee then submitted another letter, dated November 22, 2008, again seeking retraction of the withdrawal decisions. The letter was forwarded to the Labor and Industry Review Commission (commission) for review.

The issues before the commission are: (1) how to treat the employee's correspondence, and (2) whether her request to retract her withdrawals should be granted.

Although withdrawals were originally intended not to be appealable, the format of the withdrawal itself is treated by the commission as an appealable decision. While there have been changes to the format of the withdrawals issued by the department since the key case of Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP & 03401010AP (LIRC March 4, 2004), the changes are minor and the commission has continued to review Withdrawal decisions. The commission continues to do so in this case.

Correspondence similar to the employee's November 22, 2008 letter is treated as a late petition for review of the Withdrawal Decision. See Giesen v. Schutt Industries of Clintonville WI Inc., UI Dec. Hearing No. 07402172AP (LIRC January 18, 2008).

Next, because the Withdrawal issued by the department has "NOT APPLICABLE" written in the appeal deadline section, the Commission finds that the "lateness" of the petition is for a reason beyond the claimant's control. See Glasschroeder.

In reviewing whether a retraction request should be granted, the commission uses the standard set forth in Wis. Admin. Code § DWD 140.05(2); 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.

In reviewing such requests, the commission's initial retraction denials exclusively referenced the 21-day "deadline" after explaining the procedural history. See Young v. Milwaukee Public School and Food Team Suite 730, UI Dec. Hearing Nos. 04611502MW, 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), and Brewer v. Radtke Contractors Inc., UI Dec. Hearing No. 06400442AP (LIRC June 21, 2006).

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, (LIRC February 8, 2008), the commission decided to grant a retraction request that was received after 21 days, distinguishing itself from the prior cases by rationalizing that the retraction was reasonably prompt after the employee learned the effect of her actions and where the department may have caused some confusion on the employee's behalf; specifically where the department appealed a companion determination on the employee's behalf (it was negative to her) but did not warn her about the relationship between that determination and another when she withdrew the appeal.

The commission granted a retraction request in Giesen v. Schutt Industries of Clintonville WI Inc., UI Dec. Hearing No. 07402172AP (LIRC January 18, 2008), rationalizing that the circumstances regarding which employer was to appear at the hearing were so confusing to the claimant as to establish good cause for the retraction request.

The commission has also denied retraction requests in Taylor v. Pioneer Metal Finishing Corp., UI Dec. Hearing No. 07400980GB (LIRC July 23, 2007); Gilson v. Human Insurance Co., UI Dec. Hearing No. 07401823GB (LIRC October 26, 2007) and Vandermale v. Citation Berlin, UI Dec. Hearing No. 08602896MW (LIRC July 31, 2008) based, in part, upon the clarity of the determination in terms of effect upon the claimant and lack of irregularity in terms of procedure or the application of the law to the facts (essentially an analysis of the determination).

In this case, the employee explains that she withdrew her appeals after she sought legal assistance and was informed that she would not win her cases. There is no departmental error involved and the determinations issued in the employee's case were clear as to their effect. There is no indication that the determinations were issued on a basis other than the facts developed by the adjudicator and the application of the law to those facts. While one determination references approved training, the delay of the disqualification under Wis. Stat. § 108.04(16) does not apply because the claimant quit to attend school, was not in approved training under any dislocated worker program at the time of the quit and there is no evidence to indicate that the work she was performing/quit was unsuitable. Similarly, there is no reason to question the propriety of the determination dealing with the employee's ability to work and/or availability for work.

The commission therefore finds that the claimant's requests for hearings were withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the claimant did not file requests to retract her withdrawals that met the requirements of Wis. Admin. Code § DWD 140.05(2).

DECISION

The withdrawal decisions of the administrative law judge are affirmed. Accordingly, the requests for hearing will not be reinstated and the Initial Determinations shall remain in effect.

Dated and mailed January 5, 2009
watsoge . upr : 150   PC 718

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: City of Milwaukee, Milwaukee, WI 53202-0000


Appealed to Circuit Court.  Affirmed July 2, 2009   [Summary of circui court decision]

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uploaded 2009/01/27