AL-MATEEN W POTTS, Employee

STAFF ON SITE OF WISCONSIN INC, Employer

On October 28, 2010, a determination was issued finding that in week 41of 2009, the employee was terminated because he was unable to do or unavailable for suitable work otherwise available with the employer. The determination further found that the employee was unable or unavailable for work in the labor market and, in the effect section, the determination provided:

NO BENEFITS ARE PAYABLE UNTIL THE EMPLOYEE IS ABLE TO WORK AND AVAILABLE FOR WORK.

The determination had an appeal deadline of November 12, 2010. The determination was not appealed.

On November 16, 2010 a subsequent determination was issued finding that as of week 45 of 2010, the employee was able to work and available for work.

The employer appealed the November 16, 2010 determination on November 29, 2010. A hearing was scheduled for February 9, 2011 before Administrative Law Judge (ALJ) Moe. The employer appeared attempting to present evidence regarding the week 41 of 2009 determination. The ALJ explained that the separation was not at issue, as that determination was final. The ALJ took the employer's comments as a withdrawal to the issue of the ability to and availability for work in week 45 of 2010 and the representative did not object.

A withdrawal decision was issued on February 9, 2011. On February 24, 2011, the employer's agent, with NSN Employer Services, wrote a letter seeking the matter be reopened.

On March 9, 2011, the Senior ALJ in Madison, replied by letter to the employer, explaining that the matter would not be reopened and the withdrawal would remain in effect. Her letter explained the procedural history and the fact that the employer could not challenge the underlying separation determination, which was final, through the subsequent A&A determination.

On April 22, 2011, the employer faxed another request to Senior ALJ which was forwarded to the commission.

The issue before the commission is whether to treat the second request as a petition for commission review and whether to grant the employer's request to retract its withdrawal.

First, the commission notes that 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 continues to review withdrawal decisions as petitions for commission review under Wis. Stat. § 108.09(6). Correspondence similar to the employer's 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 employer'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.

The employer's request to retract its withdrawal does not establish good cause; the ALJ's explanation and actions were proper and the employer cannot use the subsequent determination dealing solely with the employee's ability to work and availability for work as a means to change the earlier final determination regarding the nature of the separation of the employment relationship.

The commission therefore finds that the employer's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the employer did not file a request to retract its withdrawal which met the requirements of Wis. Admin. Code § DWD 140.05(2).

The withdrawal decision of the administrative law judge is affirmed. Accordingly, the request for hearing is withdrawn. The Initial Determination remains in effect

Dated and mailed May 26, 2011
pottsal : 150 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: Staff on Site (Janesville, Wisconsin)

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