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

HALEMA N  C  KING, Employe

BUFKIN ACADEMY LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607294MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

An initial determination adverse to the employe was issued October 7, 1999 and contained an appeal deadline of October 21, 1999. The employe placed her appeal in a locked mailbox at her apartment complex at approximately 7:00 or 8:00 p.m. on October 20, 1999. The mailperson usually arrives at her apartment complex at 11:30 a.m. She checked the mailbox the next day at 11:30 a.m. and the mail had not been picked up. She is unable to retrieve her mail because the box is locked and can only be opened by the postal worker. The mailperson eventually came at 4:00 p.m. on the afternoon of October 21. However, the employe's appeal was not postmarked until October 22 and was received at the Milwaukee Hearing Office on Monday, October 25. Prior to this incident the employe asked the mailperson whether mail is postmarked the same day it is picked up and was told that it was. Therefore, she believed that when her mail was picked up on October 21 it would receive a postmark of October 21.

The issue to be decided is whether the employe's request for hearing was late for a reason beyond her control

The employe is allowed until October 21 to mail her appeal. The employe acted as a reasonable person would in placing her appeal in her apartment complex's outgoing mail, which mail is regularly picked up by a postal worker at 11:30 each morning. The employe could not reasonably anticipate that the mailperson would not appear until 4:00 p.m. She had previously been assured that mail receives a postmark on the same day that it goes out. The employe did not in fact wait until the last minute to file her appeal. The employe put her appeal in a mailbox that has regular mail service on the day prior to the appeal deadline. It was not within her control that the mail would not be picked up on time or that the late pick up would result in a delayed postmark.

The commission therefore finds that the employe's request for hearing was not timely but that the employe's failure to file a timely request for hearing was for a reason that was beyond her control within the meaning of Wis. Stat. § 108.09(4).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the hearing office for a hearing and decision on the merits of the employe's appeal.

Dated and mailed January 13, 2000
kinghal.urr:132 : 1 : PC 711

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission disagrees with the administrative law judge's conclusion that the employe's petition was not late for a reason beyond control based on her failure to mail the petition before the final date. The employe is entitled to use the entire petition period. The employe placed her petition in the postal stream in time for it to receive a timely postmark.

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