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


TERRI J ROUSE, Employe

HOLIDAY INN OF RHINELANDER (CORRECTED), Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201932RH


The Appeal Tribunal Decision (ATD) dated February 4, 1999 is hereby set aside upon the grounds of mistake as to the identity of the employer, modified to correct that mistake and, as modified, is reinstated.

The Commission takes this action on its own motion, pursuant to its authority under Wis. Stat. § § 108.09(6)(c) and (d), and in response to a "Request for Review" dated, and received from the Department of Workforce Development, on April 26, 1999.

Copies of the Department's Request were also mailed to all interested parties on April 26, 1999. The Commission has received no objection to the correction proposed by the Department.

DECISION

Accordingly, the Appeal Tribunal Decision dated February 4, 1999, as modified, is reinstated and the employe is ineligible for benefits in week 46 and 47 of 1998. She is eligible for benefits beginning in week 48 of 1998, if otherwise qualified.

Dated and mailed June 7, 1999
rousete.upr : 200 : 6  PC 740

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The Commission has taken official notice of the entire content of the administrative file related to this case, including, but not limited to, the Initial Determination, the appeal, the Acknowledgement of Timely Appeal, the Hearing Notice, the appearances and testimony at the hearing and the Appeal Tribunal Decision.

Ms. Rouse worked for Holiday Inn of Rhinelander. After her separation from that employment, she claimed benefits. On November 12, 1998, the department sent a wage verification form to Holiday Inn of Rhinelander (the correct employer). Sandra Masse, an employe of Holiday Inn of Rhinelander, was the individual who, on November 16, 1998, responded to the form. Ms. Masse also raised the "quit" issue on that form.

A Department Deputy interviewed the employe by telephone on November 24, 1998, and issued the Initial Determination on November 27, erroneously addressing it to Holiday Inn of Appleton. Apparently, there was no immediate reaction to the error by either employer.

On the merits, the Initial Determination held that the employe quit for a reason not within the exceptions to the "quit disqualification" in Wis. Stat. § 108.04(7)(a). She was therefore further held to be ineligible for the week of the quit and four weeks thereafter, and required to requalify by earning wages of at least $424 in covered employment after the week of her quit.

The employe timely appealed (requested a hearing) on December 11, 1998. On the same date, the department sent a Confirmation of Timely Appeal to Holiday Inn of Appleton (the wrong employer).

A hearing notice was thereafter sent to Holiday Inn of Appleton. Fortunately, a copy of the hearing notice was also sent to Holiday Inn of Rhinelander.

Apparently, there was no objection or question from either employer regarding the listing of Holiday Inn of Appleton as the Respondent in the caption of the hearing notice.

At the hearing, Sandra Masse, the employe's supervisor at Holiday Inn of Rhinelander (the correct employer) appeared and provided firsthand testimony regarding the circumstances of the employe's separation from employment.

The Appeal Tribunal Decision issued after the hearing modified the Initial Determination, reversing it in part and affirming it in part. Specifically, the Appeal Tribunal held that the employe quit because of the health of a family member within the meaning of Wis. Stat. § 108.04(7)(c)--a conditional exception to the "quit" disqualification. The ATD further held that the employe was ineligible for benefits for the first two weeks after her quit because she was not able and available (she was caring for her sick son). The ATD also held that in subsequent weeks the employe was able and available and therefore eligible if she was otherwise qualified.

No timely petition for Commission review of the quit issue was filed by anyone.. However, the department has requested that the Commission act on its own motion, pursuant to the Commission's authority under Wis. Stat. § 108.09(6)(c) and (d), to correct the mistake as to the identity of the employer.

More specifically, the Department has requested that the Commission set aside the ATD and remand the case to the Appeal Tribunal with a direction to name the correct employer in a new ATD.

The difference between the "set-aside" authority of the Commission and that of an Appeal Tribunal, as affecting this case, is that the Commission can set aside an ATD upon grounds of any kind of mistake the Commission deems to be a sufficient reason for such action. Wis. Stat. § § 108.09(6)(c) and (d). The statute has no language limiting the term "mistake." Courts have held that the term includes mistakes of fact as well as mistakes of law; e.g., La Crosse Footwear v. LIRC, 147 Wis. 2d 419, 434 N.W.2d 392 (Ct. App. 1998).

An Appeal Tribunal's authority to set aside an ATD on the basis of a mistake is more circumscribed. It can be exercised at any time in a case where, as here, no party filed a timely petition for Commission review. However, the set-aside must be based on a mistake that is a "technical or clerical" mistake. Wis. Stat. § 108.09(4)(f)2.a.

Here, the Administrative Law Judge, did not view this as a "technical or clerical" mistake. Accordingly, the ALJ considered it inappropriate to exercise her discretionary authority to set aside her ATD and correct the mistake.

The Commission considers that the mistake in this case can be reasonably viewed as a "technical or clerical" mistake. Clerical mistakes apparently began as early as the transcription of, or reliance upon the deputy's notes of his telephone interview with the employe. As the case proceeded to the more formal stages (Initial Determination, Acknowledgement of Timely Appeal, Hearing Notice, the hearing itself, and the issuance of the ATD), the initial misidentification error was perpetuated. It may still be reasonably viewed as a technical or clerical mistake unless or until it impacted due process. If the "misjoinder" of parties (to borrow a judicial term) had deprived Holiday Inn of Rhinelander of its right to know about and oppose the employe's claim for benefits potentially chargeable against its U.I. account, due process clearly would have been negatively impacted. That didn't happen. Holiday Inn of Rhinelander, in the person of Sandra Masse, participated in the informal investigation preceding the Initial Determination; Ms. Masse was clearly the appropriate witness for the employer, and she appeared at the hearing, testified, and cross-examined the employe. Neither she nor any other representative of Holiday Inn of Rhinelander has claimed any deprivation of due process.

The Commission has also considered the interests of the Holiday Inn of Appleton. The Holiday Inn of Appleton received actual (albeit legally unnecessary) notice throughout the progress of this case. The only way in which their due process rights would be compromised is if the clerical/technical error of naming them as the employer were not corrected.

cc: HOLIDAY INN OF APPLETON

GREGORY A FRIGO, DIRECTOR
BUREAU OF LEGAL AFFAIRS


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