Opinion
C.A. No.: 00A-09-011-FSS
Submitted: September 25, 2001
Decided: December 20, 2001
ORDER
On Appeal From the Unemployment Insurance Appeal Board — AFFIRMED Employer, Integrity Staffing Solutions, Inc., appeals the Unemployment Insurance Board's Appeal Referee's decision in favor of the Delaware Division of Unemployment Insurance. There are two separate issues in these thirteen cases. The first issue concerns Integrity's failing to return forms for some claimants. The second issue concerns Integrity's returning forms, but failing to fill them out correctly. First, the Division's Unemployment Benefit Accounting Specialist, and then the Appeals Referee held that Integrity's oversights were dispositive.
I.
Thirteen workers filed unemployment insurance claims. In response, the Division sent computer generated "UC-119" forms to Integrity, at its address of record in Landsdowne, Pennsylvania.
Integrity did not return eleven forms. Integrity did return two, both of which lacked necessary separation information. Accordingly, Integrity was charged for all thirteen claims. It appealed. An Unemployment Benefit Accounting Specialist then determined that Integrity was properly charged for each claimant. Integrity appealed again. An Unemployment Insurance Appeals Referee affirmed twelve charges and reversed one.
The Referee found that Brinkley was paid by integrity's subcontractor. Integrity won on that claim, so Brinkley appears on the caption merely as a matter of form.
At the Referee's hearing, a Division representative testified. She stated that for each claim, the Division mailed the computer generated forms to Integrity's "address of record," which the Division had "since [Integrity] filed in 8/18/97." The representative stated that the Division had Integrity's address of record in Landsdowne, Pennsylvania. For eleven claims, she testified that no forms were returned from Integrity, nor were any forms "returned by the Postal Service as undeliverable." Lastly, the representative stated that, "in accordance with Title 19, 3317(b) we charged their account." For the Moore and Sheridan claims, she stated that the returned forms lacked necessary information regarding separation of employment, so Integrity was charged.
The Division representative testified that if an employer calls and requests an address change, the employer is told that "if they change their address that means all forms are changed to whatever address they want to change it to." And, "it must be done in writing `cause we have to have a live signature telling us that the address is going to be changed." She further stated that the Division cannot change an address based on a telephone request.
Integrity also called a representative to testify. She stated that Integrity had requested "several times that the address actually be changed. We've asked for it in writing as well as via the phone."
Integrity did not produce a copy of any request. Integrity's representative further testified that for eleven claims, Integrity never received the forms. She stated that Integrity had no notice and was unaware of the claims until Integrity was charged. As to the Moore claim, Integrity's representative testified that Moore never informed
Integrity that he was available for work. For the Sheridan claim, the representative stated that the form was filled out incorrectly by an unauthorized person. Lastly, when questioned about the Landsdowne address, she testified that it was Integrity's "owner's home private residence." And, that the owner "brings [the forms] into the office the very next day." As mentioned, the Referee ruled against Integrity on twelve out of thirteen claims. Integrity filed a timely appeal under 19 Del. C. § 3355(d).
19 Del. C. § 3355(d), in pertinent part: The base period employer . . . shall be duly notified of the appeals tribunal's decision on each benefit wage charge for which redetermination is requested, together with its reasons therefor, which shall be deemed final unless within 15 days after the delivery of such decision, a petition for judicial review is filed in the Superior Court.
II.
Integrity now contends, substantively, that the claimants "voluntarily resigned their employment," and, procedurally, that Integrity never received the UC-119 forms "advising it that these employees had claimed unemployment benefits." Integrity also maintains that the Referee did not consider the evidence that Integrity did not receive those claimants' forms, even though Integrity received other claimants' forms at the same time. Integrity states that the Division "only provided a computer print out" showing the printout's date. It did not present any evidence that "the notices are mailed after they are computer-generated." Finally, Integrity contends that the Referee failed to consider evidence that "the Division had no system in place to ensure that UC-119s are actually sent out, or that returned mail is properly processed."III.
The Court's review of a benefit wage charge determination is limited by 19 Del. C. § 3355(d). The Court's determination is limited to the record. Witness credibility, testimony weight and any reasonable inferences to be drawn are the Board's determination. If the Board's decision is supported by the evidence and there is no mistake in law, the Board's decision stands.
19 Del. C. § 3355(d), in pertinent part: In any proceeding under this section the findings of the appeals tribunals as to the facts, if supported by the evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the Court shall be confined to the questions of law. No additional evidence shall be received by the Court. . . .
Hubbard v. Unemployment Ins. Appeal Board, Del. Supr., 352 A.2d 761, 763 (1976)
Coleman v. Dept. of Labor, Del. Super., 288 A.2d 285, 287 (1972)
Longobardi v. Unemployment Ins. Appeal Board, Del. Super., 287 A.2d 690, 692 (1971), aff'd, Del. Supr., 293 A.2d 295 (1972)
Under 19 Del. C. § 3317(b), an employer must return a UC-119 form within seven days of notice. The employer may not seek relief unless the Department for good cause, releases the employer from the default. Generally, notice must "be actually received in order to be effective for all purposes." Further, "mere notice is . . . not sufficient to bind a person who never receives it. If the mailed notice is in fact not received, the notification is without any legal effect." With mailings, however, there is a presumption that when the mailing is "correctly addressed, stamped and mailed," it was "was received by the party to whom it was addressed." The presumption of proper mailing is particularly pertinent to this case.
19 Del. C. § 3317(b), in pertinent part: Any last or base employer who fails to return a separation notice or who fails to complete a separation notice whithin the period prescribed . . . shall be barred from claiming subsequently that the individual claimant to whom such separation notice applied shall be disqualified . . . and shall be barred from seeking relief from benefit wage charges to its experience merit rating account . . . unless the Department for reasons found to constitute good cause, shall release such employer from default.
Jewell v. Unemployment Compensation Commission, Del. Supr., 183 A.2d 585, 587 (1962)
Id.
Hall v. Camper, Del. Super., 347 A.2d 137, 139 (1975) (citation omitted).
IV.
The factual question presented is whether the notices were mailed to Integrity. The Referee found that they were sent to Integrity, or its owner. The legal question presented is the extent to which failing to return a UC-119 form is dispositive. The Referee allowed the Division to charge Integrity's unemployment insurance account entirely because Integrity failed to return the forms.
The factual dispute essentially boiled down to Integrity's claim that it never received the forms and the Division's claim that the forms were sent to Integrity's address of record, its owner's residence. Unfortunately, neither side made anything approaching an exhaustive, factual presentation. So, the Referee had little to work with. Basically, both the Division and Integrity told their side of the story, without elaboration.
Based on the limited record presented to the Referee, she inferred that the Division sent the computer generated forms to Integrity's address of record. That inference was justified by the Division's meager, but substantive, evidence of proper mailing. Once the Division established that it probably sent the UC-119 form correctly, the burden shifted to Integrity. At the hearing, Integrity could not support its claim that it had changed its address of record. It attempted, on the spot, to have a copy of its written request faxed to the Board, but that was unsuccessful. Thus, the Referee could conclude, as she did, that Integrity failed to demonstrate that it properly notified the Division of its address change. Also relevant is Integrity's representative's testimony, mentioned above, that the Landsdowne address is Integrity's owner's address, and about the informal way that Integrity handles mail from the Division.
There is a subtext to the decision about the claims that Integrity did not return. In two cases, where Integrity did return the forms, it failed to provide essential information, and as discussed above, Integrity was charged. Accordingly, it is unlikely, even if Integrity had returned the forms for the other claims, that Integrity would have correctly completed those forms. As Integrity explained in connection with the two forms that it returned, an unauthorized person filled them out incorrectly.
This decision, however, does not turn on the subtext.
In its appellate brief, Integrity tries to couch the facts in constitutional terms. This case does not have that dimension. Actually, the Referee heard all the evidence that Integrity presented concerning the notice question. And, as mentioned above, the Referee even gave Integrity the opportunity, during the hearing, to obtain and provide a copy of its written address change request. Although, Integrity attempts to make an issue out of the Division's failure to "present any evidence regarding the Division's procedure for ensuring that the notices are mailed after they are computer-generated," the Division presented evidence of proper mailing and the notice issue had less to do with the Division's computer or its procedures and more to do with Integrity's failed claim that it tried to change its address of record.
The notice problem, if it existed, seems to have resulted from the fact that Integrity failed to notify the Division of its address change, which left the Division's computer with an obsolete address. Or, the problem may have resulted from the owner's not following the owner's routine of bringing the forms "into the office the very next day." The Referee's factual finding did not turn on the Division's procedures, as Integrity insists. It turned on whether Integrity had notified the Division about its change of address. As between the Division's automated system and Integrity's somewhat haphazard methods, the Referee could conclude that the problem here probably was Integrity's fault.
Regarding an employer's failure to return a UC-119 form, the Delaware Department of Labor, Division of Unemployment Insurance Regulation No. 10(3)states:
Any employer who fails to return such completed request within the period prescribed, shall be barred from claiming subsequently that the worker to whom such notice applied shall be disqualified . . . unless the Commission, for reasons found to constitute good cause, shall release such employer from default.
The Referee must determine whether the employer demonstrated "good cause" for failing to return the forms.
Solomon v. McGoy, Del Super., C.A. No. 93A-04-02, Goldstein, J. (Dec. 5, 1994) (Op. And Order).
As stated above, neither Integrity's nor the Division's evidence was exhaustive. Integrity offered little evidence to establish "good cause" for failing to return the forms. Again, it stated that it requested an address change, but was unable to provide any evidence of that request, despite being afforded the opportunity to do so at the hearing. Integrity also described the owner's mail practices regarding forms sent to the Landsdowne address. Such statements do not establish "good cause" for failing to return UC-119 forms. Presented with Integrity's unsubstantiated claim, the Referee concluded that Integrity failed to demonstrate "good cause" for failing to return the forms.
The Court is satisfied that, as sparse as the record was, there was evidence to support the Referee's conclusion that it was probable that the computer-generated forms were sent to Integrity's address of record. The Court also is satisfied that Integrity had an opportunity to present its evidence at the hearing. Integrity was afforded its due process right to challenge the Division's decision to charge Integrity's account, and to rebut the Division's evidence of proper mailing. In sum, Integrity had an opportunity to be heard.
See Baldini's Concord Service Station, Inc. v. Division of Unemployment Ins., Del. Super., C.A. No. 89A-AP-9, Stiftel, J. (Oct. 30, 1989) (ORDER).
V.
For the foregoing reasons, the Unemployment Insurance Appeals Board's September 6 — 10, 2000 decisions on M. P. Evans, S. A. Gibson, T. E. Joe, Jr., L. M. Blankenship, G. P. Adams, J. E. Burks, C. Sheridan, E. J. Moore, L. L. Sparrow, R. L. Jamison, C. Brinkley, M. Taylor, and C.L. Butler are AFFIRMED. IT IS SO ORDERED.