KYLE KOLKA, Employee

FEDEX CORPORATE SERVICES INC, Employer

Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the July 2, 2010 and the June 23, 2010 appeal tribunal decisions in the above-referenced matter and remands the matter for:

1. a new hearing with a different administrative law judge,
2. the issues noticed for hearing should include the proper employer account number, the employee/ independent contractor issue and, if an overpayment is created, whether repayment of the overpayment should be waived, and
3. the department should provide a witness to provide testimony as to the unemployment insurance account numbers for the respective employers.

4. Upon conclusion of the hearing, the administrative law judge should issue an appeal tribunal decision.

Dated and mailed July 29, 2010

kolkaky : 150 : 5 PC 729 ; PC 715

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

On June 23, 2010, an administrative law judge (ALJ) issued a decision for UI hearing no. 10200307EC that held that the claimant performed services as a statutory employee of FedEx Ground Package System, Inc., employer account number 326570. At the hearing before the administrative law judge, Attorney Miller represented FedEx Ground Package System Inc.

On July 2, 2010, the ALJ amended the June 23, 2010 decision changing the employer of record from FedEx Ground to FedEx Corporate Services, Inc., employer account number 721036. However, FedEx Corporate Services, Inc., employer account number 721036 was not noticed for the hearing and a representative did not appear upon its behalf. The ALJ's amendment was apparently based upon a contact from a UI department representative after the issuance of the first appeal tribunal decision.

On July 9, 2010, the department received two letters from Talx UCExpress. The first, on behalf of employer account number 721036, requested review of the decision. The second, also from employer account number 721036, requested review arguing that the proper chargeable employer was FedEx Ground Package System, Inc., employer account number 326570.

On July 21, 2010, attorney Miller contacted the commission offices objecting to the change in employer account number from account number 326570.

Wis. Stat. § 108.09(4)(f) provides:

Postdecision changes. 1. Except as provided in par. (e) 3., within
21 days after its decision was mailed to the parties the appeal tribunal may on its own motion amend or set aside its decision and may thereafter make new findings and issue a decision on the basis of evidence previously submitted in such case, or the same or another appeal tribunal may make new findings and issue a decision after taking additional testimony.

2. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may set aside or amend an appeal tribunal decision, or portion thereof, at any time if the appeal tribunal finds that:

a. A technical or clerical mistake has occurred; or

b. The benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the appeal tribunal is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.

3. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may, within 2 years after the date of the decision, reopen its decision if it has reason to believe that a party offered false evidence or a witness gave false testimony on an issue material to its decision. Thereafter, and after receiving additional evidence or taking additional testimony, the same or another appeal tribunal may set aside its original decision, make new findings and issue a decision.

The ALJ's amendment may have been based upon a belief that the employer account number situation was a technical mistake. However, given the petition by FedEx Corporate on the grounds of incorrect employer, it clearly was not a technical change. The choice of employer was not an issue for hearing, was not raised as an issue by the hearing notice, which was only sent to employer account number 326570, and neither of the entities had an opportunity to provide evidence on the choice of employer issue. See De Bauche case, Trade Act Decision Hearing No. 01403962GB (LIRC September 6, 2002)(The commission held that an ex parte communication by an ALJ constituted a due process violation; communications concerning the merits are improper ex parte contacts even where the communication is with someone who is not a party.)

Based upon the foregoing, the commission finds that the ALJ's amendment was not proper and both the July 2, 2010 amended and the June 23, 2010 original decision be set aside for proper notice and resolution of the issues.

cc: Attorney Amanda Miller (c/o FedEx Ground Legal Department)
FedEx Ground Package System Inc.

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