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


SHAWN F CONSTANTINI, Employe

SUPERVALU HOLDINGS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98402338AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The initial determination which allowed unemployment insurance benefits was mailed to the employer's representative, a business that handles unemployment insurance matters for employers. The representative's hearings consultant, Ms. Rose, received the determination on December 23, 1997. The determination indicated that the last day upon which to file a timely appeal was January 2, 1998.

Following Ms. Rose's receipt of the determination, she made attempts to discuss the matter with the employer. On December 31, 1997 the employer and Ms. Rose decided to appeal the determination. On December 31, 1997, Ms. Rose drafted an appeal letter and forwarded it to another department at the representative's business to be faxed to the Fox Valley Hearing Office. No appeal letter was processed as being received by the Fox Valley Hearing Office from the representative.

On August 13, 1998, the Unemployment Insurance Department received a letter from the representative objecting to the charges against the employer's account and indicating that an appeal had been filed. On September 8, 1998, the representative mailed another letter objecting to charges again indicating that an appeal had been filed. The letter on the 8th included a copy of the appeal letter which was allegedly faxed to the hearing office. That appeal letter indicated that the employer's account number was 540303, that the first two digits of the extension for the hearing consultant was 38 and listed the representative's corporate address on the bottom of the page. (Exhibit 5, p. 1) At the hearing the employer faxed a copy of the fax confirmation for the December 31 appeal to which is attached a copy of the original appeal letter. (Exhibit 5, p.2)

The administrative law judge reasoned that the appeal letter sent with the September 8 letter indicates that the employer's account number was 54303 and that the first two digits of the hearings consultant's extension was 38, whereas a copy of the appeal letter allegedly faxed to the hearing office indicated an account number of 54 303 and a hearing consultant extension of 36. The administrative law judge reasoned that the employer presented two documents that were allegedly copies of the appeal letter but the two documents were different. The administrative law judge concluded that these facts, along with the fact that Ms. Rose did not personally fax the document, constituted a failure on the employer's part to establish that it filed a timely appeal.

The commission disagrees with the administrative law judge's reasoning. The first page of Exhibit 5 is the original appeal letter. The second page is the same appeal letter with a fax confirmation portion on top. The confirmation portion indicates that it was sent to the Fox Valley Hearing Office on December 31. It lists the hearing office's correct fax number. That confirmed that the employer did send the fax on December 31. The commission does not believe that the appeal letter that is page one of Exhibit 5 and the appeal letter included in the second page of Exhibit 5 are different appeal letters. It appears that some imperfection was caused by the process of faxing page 2 of Exhibit 5 on the date of the hearing. It is not clear that there is a 6 rather than an 8 after the hearing consultant's extension number on page two, and it appears that a wrinkle or a bubble or the like caused a 0 in the account number not to be copied in the transmittal of the fax confirmation appeal letter, thus making 540303 appear as 54 303.

Finally, the confirmation portion of the faxed document indicates it was indeed faxed to the Fox Valley Hearing Office's fax number on December 31. Therefore, while Ms. Rose did not personally fax the document, she established it was faxed to the hearing office timely. The commission concludes that the hearing office's failure to receive that fax was beyond the employer's control.

The commission therefore finds that the employer's request for hearing was late for a reason beyond its control within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employer's request for a hearing on the merits is not dismissed. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed: December 9, 1998
constsh.urr : 132 : 1 PC 711

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]