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

PATRICIA A GRIESBACH, Employee

SEEK CAREER/STAFFING INC, Employer

NORTHEAST WIS TECHNICAL COLLEGE

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10402551AP


On May 27, 2010 an initial determination (# 100316701) was issued finding that the employee had refused an offer of work, without good cause, within the meaning of Wis. Stat. § 108.04(8)(a), that her benefit eligibility was suspended, that an overpayment of $548 resulted, and that the overpayment could not be waived. The only employer identified on this initial determination was Seek Career/Staffing, Inc. ("Seek").

A timely request for hearing was filed as to that determination by the employee.

After notice and hearing, an ALJ issued a decision on October 1, 2010, which reversed the determination, concluding that Seek did not meet its burden to establish that the employee was given a bona fide offer of suitable work.

Timely petitions for commission review were filed by both Seek and Northeast Wisconsin Technical College ("Northeast").

On November 30, 2010, the commission issued an order which set aside the ALJ's October 1, 2010 decision and remanded the matter to the department for a new hearing and decision, in which Northeast was to be made a party, with notice of hearing and the opportunity to participate as a party.

The commission's November 30, 2010 decision expressly stated:

[t]he effect of this decision to set aside th[e] Appeal Tribunal Decision, is to return matters to the state at which they were before the Appeal Tribunal decision was issued...

On January 21, 2011, prior to any hearing having been noticed or held pursuant to the commission's order, the department issue a "redetermination" (#110039591) which recited that the decision of May 27, 2010 was set aside and reissued due to subsequent information, and which restated the substance of the May 27, 2010 initial determination without change except for an increase in the amount of the overpayment determined.

The department's authority to set aside or amend one of its own determinations is set out in Wis. Stat. § 108.09(2)(c), and it provides that the department may do so in certain cases "[u]nless a party has filed a timely request for hearing as to the determination." In this case, a party had filed a timely request for hearing as to the May 27, 2010 determination. The commission's decision of November 30, 2010, did not change that fact. The commission's decision simply returned matters to the state at which they were before the Appeal Tribunal decision was issued. The matter was still one in which a timely request for hearing had been filed pursuant to which the matter was pending at the hearing level awaiting hearing.

The department therefore lacked the legal authority to issue the redetermination of January 21, 2011.

For the foregoing reasons, and for the reasons stated its order of November 30, 2010, which is incorporated herein by reference, the commission now makes the following:

ORDER

The January 21, 2011 "redetermination" of the department (#110039591) is set aside.

This matter is again remanded to the department for a new hearing and decision in this matter, in which Northeast Wisconsin Technical College shall be made a party, with notice of the hearing and the opportunity to participate as a party. Both the merits, and all overpayment issues (see the NOTE attached to the commission's November 30, 2010 decision), should be taken up at this new hearing.

Dated and Mailed February 9, 2011
griesba02 . urr : 110 : PC 715 : PC 740

BY THE COMMISSION: 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc:
Attorney Sarah J Kons, Petit & Dommershausen SC
Northeast Wisconsin Technical College, c/o Kim Jameson

 


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