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

TINA L ANDREWS, Employe

FLEX STAFF TEMP SERV, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97400372AP

On December 21, 1996, the Department of Workforce Development issued an initial determination which held that the employe did not have good cause for failing to accept an offer of work. On February 1, 1997, the employe filed a late request for hearing on the adverse determination. Hearing on the issue of the timeliness of the employe's request for hearing was held on February 24, 1997 in Appleton, Wisconsin before a department administrative law judge. On February 28, 1997, the administrative law judge issued a decision dismissing the employe's request for hearing. The employe timely filed a petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in this case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department of Workforce Development mailed the above-mentioned initial determination to the employe on December 21, 1996. Pursuant to Wis. Stat. § 108.09 (2r), the last date for a timely request for hearing was January 6, 1997. The employe only filed her request for hearing on February 1, and the issue is whether her late request for hearing was so for a reason beyond her control. The commission concludes that it was, and so reverses the appeal tribunal decision.

Pursuant to Wis. Stat. § 108.09 (4)(i), a late request for hearing must be dismissed unless it was late for a reason beyond the appellant's control. The following factors lead the commission to conclude that the employe in this case meets this standard. First, the employe was the subject of another initial determination issued on the same date, which held that she had been discharged but not for misconduct. This initial determination stated, without qualification, that benefits were allowed. That is, the determination did not state that the employe's eligibility for benefits was dependent upon resolution of any other issues.

In addition, the employe was the subject of a third initial determination issued December 24, 1996, which found that she had good cause for having failed to accept a previous offer of work. Again, this determination stated without qualification that benefits were allowed.

Finally, on December 26, 1996, the employe spoke with the department deputy who had issued the three initial determinations. According to the employe, the deputy told her he might have made a mistake and that he would get back to her. The deputy testified that he did not remember specifically what was said in this conversation with the employe; he speculated that he might have told her he would look into whether he could issue a re-determination, and he was not sure whether he indicated to her that he would get back to her. Without choosing either the employe's or the deputy's testimony over the other, at the very least the conversation did not make clear to the employe that she had to respond to the adverse December 21, 1996 initial determination.

All of these factors, taken together, suffice to make beyond control the employe's late appeal of the adverse December 21, 1996 initial determination, and the commission so finds.

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed July 30, 1997
andreti.urr : 105 : 7  PC 711

/s/ Pamela I. Anderson, Chairman

/s/ Davis B. Falstad, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is necessary where the commission is considering reversal of an appeal tribunal decision, and credibility was a factor in the administrative law judge's decision-making. The administrative law judge did not indicate that credibility was a factor in this case.

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