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

ROBERT J SANDERS, Employe

KRUKOWSKI CONSTRUCTION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98002807JV

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed on August 27, 1998. The department forwarded the file to the commission on January 4, 1999.

The commission has considered the petition and it has reviewed the file and record in the case. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Delete the 2d and 3rd paragraphs of the Administrative Law Judge's Findings of Fact and Conclusions of Law.

Delete the 6th through the 10th paragraphs of the Administrative Law Judge's Findings of Fact and Conclusions of Law.

Delete the 13th and 14th paragraphs of the Administrative Law Judge's Findings of Fact and Conclusions of Law.

In the 15th paragraph of the Administrative Law Judge's Findings of Fact and Conclusions of Law, delete "further" and substitute "therefore".

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 45 of 1997, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. Benefits paid to the employe in error were not paid as a result of any failure by the employer, and will not be charged to the employer's account. The employe is required to repay the sum of $1,292 to the Unemployment Reserve Fund.

Dated and mailed: February 3, 1999
sandero.upr : 110 : PC 749

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Summary -- This case involves an attempt by Robert J. Sanders to take a "second-level" appeal from a ruling against him, after he failed to timely take a "first-level" appeal from that ruling. The commission has concluded that he has no right to do so.

Background -- The employe, Robert J. Sanders, worked for Krukowski Construction, Inc.("Krukowski"), until November , 1997. He next worked for Pioneer Roofing of Johnson Creek, from early February 1998 until he was laid off from that job in March, 1998. On March 19, 1998, he initiated a claim for benefits. In his claim, he indicated that he had been laid off from Krukowski as well as from Pioneer. A UCB-16 form was then sent to Krukowski, for it to provide information relevant to the separation. This form was never returned. Because the employe had said in his benefit claim that he had been laid off, and because no eligibility issue was raised in a timely UCB-16, benefit payments began. Payments were made for weeks 12 through 19 of 1998. Then, on May 14, 1998, benefits were suspended after the department received a letter from Krukowski asserting that Sanders had in fact quit.

Following an investigation, an Initial Determination was issued on June 11, 1998. This Initial Determination found a disqualifying quit in week 45 of 1997, and it determined that the employe had thus not been entitled to the benefits which had been paid to him and had thus been overpaid those benefits (in the amount of $1,292) which, it indicated, would have to be repaid.

The Initial Determination also found that Krukowski had failed to file a timely report (UCB-16), and that therefore, pursuant to Wis. Stat. § 108.04(13)(c), the benefits which had been erroneously paid to the employe through June 13, 1998 would remain charged to Krukowski's reserve account. The Initial Determination further held that Krukowski's account would not be credited with the erroneously paid benefits, even if they were recovered. See, Wis. Stat. § 108.04(13)(c).

Although this Initial Determination had definite adverse consequences for both parties, only Krukowski filed an appeal. While its request for hearing did not specifically state what was being appealed, that was obvious, in that the only thing that affected Krukowski was the issue of whether the benefits paid to the employe were going to be charged to its account. Thus, Krukowski was obviously not appealing the finding that the employe was had quit, since even if the employe had been laid off, the effect on Krukowski would have been the same; i.e., the benefits would be charged to its account. Clearly, Krukowski was appealing the finding that it had no excuse for not timely filing its UCB-16.

Unfortunately, an error occurred when the Notice of Hearing was prepared. Although the only request for hearing had come from the employer, the Notice of Hearing was set up showing Sanders as Appellant and Krukowski as Respondent. Furthermore, the only issues described in the Notice of Hearing were the issues which would have been appropriate had Sanders appealed. (1)

It appears that the Administrative Law Judge noted this error prior to the hearing and that at the hearing he had some discussion with the parties about the scope of the issues. As will be discussed below, there is some uncertainty as to what discussion were had.

Following the hearing, the ALJ issued a decision which addressed both the "quit" issue which was erroneously described in the Notice of Hearing as being presented in the case, and the untimely UCB-16/benefit charging issue which was in fact the only issue actually presented by a timely request for hearing (but which had not been mentioned in the Notice of Hearing).

The Administrative Law Judge's decision on the untimely UCB- 16/benefit charging issue was in favor of Krukowski. It is not surprising, therefore, that Krukowski did not file a petition for review. It should also be noted that the department, which had the right to do so, see Wis. Stat. § 108.09(6)(a), also did not file a petition for review from the Administrative Law Judge's ruling on the untimely UCB-16/benefit charging issue.

However, the Administrative Law Judge's ruling on the question of whether there had been a disqualifying quit was adverse to Sanders, and he timely filed a petition for review.

Discussion -- The threshold question presented to the commission in this case, as in every case, is what issues are before it given the fact that a timely petition for review has been filed from a decision of an Administrative Law Judge. In most cases, the nature of the lower decision and the identity of the party requesting review make it clear what issues(s) are presented. In this case, however, the situation is not as clear.

The statutes and rules which govern petitions for commission review in UI cases do not contain any provisions which define or limit issues based on who files the appeal from the administrative law judge's decision or on what they mention (or do not mention) in their petition. Wis. Stat. § 108.09(6)(a) simply provides that "[t]he department or any party may petition the commission for review of an appeal tribunal decision". The commission's rules merely reiterate this statutory provision. There is also no requirement that a party be "aggrieved" in order to have the right to file a petition for commission review. The difficulty arises from the fact that the case has involved, at different times, a number of separate issues.

This problem -- the scope of the commission's review in light of the source and contents of the petition for review -- has confronted the commission in its decision-making in cases arising under the Worker's Compensation and Fair Employment Acts. In both of those areas, the commission has held that as far as its authority to act is concerned, any petition for review from any party puts the entire case before the commission, but that as a matter of policy, it will generally not exercise that review authority to address an issue that has not been at least implicitly raised by a petition for review. See, e.g., Neuman v. Hawk of Wisconsin (LIRC, 03/12/93) (Fair Employment case), Polakowski v. Clearview Nursing Home (LIRC, 12/17/97) (Workers Compensation case). The commission believes that it is appropriate for it to follow the same policy in the case of requests for review of decisions of UI Administrative Law Judges.

In this case, the untimely UCB-16/benefit charging issue has not been explicitly raised by any petition for review. Furthermore, the commission does not believe that it is implicitly raised by the employe's petition for review. The factual issues presented by the untimely UCB-16/benefit charging issue have no "overlap" with the disqualifying quit issue, and the outcome of the untimely UCB-16/benefit charging issue has no effect on the employe because (assuming there was a disqualifying quit) he will be obliged to repay the benefits erroneously paid to him whether or not those benefits are charged to Krukowski's account. Because of this, the commission sees no reason to exercise its authority to review the Administrative Law Judge's decision insofar as it concerns the untimely UCB-16/benefit charging issue, and it will instead summarily affirm the Administrative Law Judge's decision on that issue.

Turning to the disqualifying quit issue, the commission is faced with the question of whether the substance of the Administrative Law Judge's decision on that issue was correct. However, the commission also takes notice of another question, as to whether the Administrative Law Judge had the authority to consider or decide that issue at all. This other question, of the Administrative Law Judge's authority, is in fact dispositive.

The Initial Determination was expressly and clearly adverse to the employe on the disqualifying quit issue. It stated that payment of benefits would not be allowed, and it also stated that there was an overpayment of $1,292 which the employe had to repay. The employe was also immediately made aware of the effect of the Initial Determination at the time it was issued because his benefits were suspended. The Initial Determination expressly stated that it would become final unless a written appeal was received or postmarked by June 25, 1998.

However, the employe did not file a timely request for hearing. The commission believes that the absence of a timely request for hearing meant that the Administrative Law Judge had no authority to address the merits of the disqualifying quit issue at hearing or in his decision. As was noted on the face of the Initial Determination, such determinations become final if not timely appealed; filing of a request for hearing is required to obtain a hearing before an Administrative Law Judge to review the merits of a determination. See, Wis. Stat. § 108.09(2r).

It is true that if an Administrative Law Judge has complied with the provisions of DWD 140.06(3) to expand the issues for hearing beyond those listed on the Notice of Hearing, he arguably can take evidence on and decide a question of whether a failure to timely file an appeal was for a reason beyond the appellant's control, see, Wis. Stat. § 108.09(4)(c), and then take testimony on and decided the underlying question. Because of the state of the record in this case, it cannot be determined if the necessary stipulations to litigate a late request for hearing issue were obtained in this case, or if evidence was actually taken on such an issue. (2) The commission tends to doubt this, based on review of those parts of the record that do exist, and also based on the fact that the Administrative Law Judge's decision does not contain any Findings of Facts or Conclusions of Law relative to a late request for hearing. However, there is a more compelling reason that the Administrative Law Judge could not have reached the merits of the disqualifying quit issue: there is no evidence that the employe ever filed any request for hearing, late or otherwise.

There is simply no way that the Administrative Law Judge could have had the authority to issue a decision in this case on the merits of the "disqualifying quit" issue. The mere fact that the Notice of Hearing inaccurately described that as an issue for hearing could not supply that authority when there was no legal basis for it.

For these reasons, the commission has on its own motion modified the Administrative Law Judge's decision to eliminate the Findings and Conclusions which address the "disqualifying quit" issue. This places the case insofar as possible in the state it would have been in had the Administrative Law Judge addressed only the issue appropriately before him.

This leaves the commission with a petition for review which, considering that it comes from the employe, can only relate to the merits of the Administrative Law Judge's decision on the "disqualifying quit" issue. However, as noted, that is an issue which the employe failed to seek an appeal of when it was decided adversely to him at an earlier stage of this case, and it is an issue which the Administrative Law Judge's decision should not have addressed. Furthermore, in legal contemplation, the Administrative Law Judge's decision (as corrected by the commission's modifications) does not address the "disqualifying quit" issue. The commission will therefore not exercise its review authority to address that issue.

NOTE: A long stretch at the beginning of the hearing, perhaps as much as an hour, was inadvertently not tape recorded due to some undetermined technical problem. There were also two brief (approximately 5 minutes) periods during the hearing in which tape recording was interrupted due to a technical error. These problems with the record would be significant if a party had petitioned for review on an issue as to which there was a dispute of fact which needed to be resolved by considering the evidence in the record. However, as the commission notes above, the only issue which has been put before it by a petition for review -- the issue of whether there was a disqualifying quit -- is an issue which the Administrative Law Judge had no authority to address because the employe had not timely appealed the Initial Determination which was adverse to him on that issue. Even if the complete record were available, and even if there were testimony in the record relevant to and supportive of the employe's theory on the "disqualifying quit" issue, the commission would reach the same result, based on the procedural history of the case. That is because the decision against the employe on the "disqualifying quit" issue in this case was final, before the hearing even occurred. The partial loss of the record of that hearing is therefore a development which, while clearly an error, is nevertheless not prejudicial to the employe.

In the petition for review, the employe's attorney requested that a briefing schedule be established. As discussed above, the commission decided not reach the merits of the quit issue. The commission believes that the result it has reached is compelled by the applicable authorities and that briefs would not serve any useful purpose in this matter. For that reason it has issued its decision without providing for the filing of briefs.

cc: ATTORNEY STEVEN J STEINHOFF

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Footnotes:

(1)( Back ) That is, they were the standard issues for the appeal of a standard "quit" LID: Whether the employe was erroneously paid unemployment benefits that must be repaid to, or waived by, the Department. (See 108.22(8)(A) and (C) Wis. Stats.) Whether the employe's separation from employment was a quitting, a discharge for misconduct, or a suspension or termination because the employe was unable to do, or otherwise unavailable for, suitable work otherwise available with the employer, and whether the employe was able and available for work. (See 108.04(7), 108.04(5), 108.04(1)(B)1, 108.04(2) Wis. Stats. and DWD 126-129 Admin. Code)

(2)( Back ) Parts of the hearing were inadvertently not tape-recorded due to an error of some kind. See the NOTE at the conclusion of the Memorandum Opinion.