799 Miscellaneous

The Labor and Industry Review Commission is not a court of equity. It is a legislative creation which lacks the authority to disregard a statutory scheme in order to achieve what it may perceive to be a more equitable result. Alarcon v. Ave. Bar (LIRC, 12/28/12).

On appeal, the Labor and Industry Review Commission affirmed an ALJ decision finding that the Respondent had unlawfully discriminated against the Complainant. However, because the Complainant did not make a specific, supported request for any further attorney’s fees in connection with the review by LIRC, the Commission did not order any additional fees. Lundstad v. Management Computer Support (LIRC, 02/21/12).

A claim that a person has committed perjury is a criminal matter and, consequently, it is a matter over which neither the Equal Rights Division nor the Labor and Industry Review Commission has any authority. Bedynek-Stumm v. State of Wis. (LIRC, 02/08/08).

On appeal to the Labor and Industry Review Commission, the Complainant referenced certain information which she alleged was improperly presented to, and was improperly relied upon by, the Equal Rights Division investigator. However, upon appeal from an investigator’s initial determination of no probable cause, a de novo proceeding is conducted by an Administrative Law Judge. As a result, the type of defect in the investigative process alleged would not affect either the Equal Rights Division’s or the Labor and Industry Review Commission’s disposition of the charge. Bock v. Shopko Stores (LIRC, 08/16/06).

A party who cannot read English, or who does not read English well, has an obligation to have documents translated. In this case, the Complainant was able to file a complaint, to read or have translated the initial determination, and to take appropriate action to file a timely appeal. She was also able to read or have translated the Administrative Law Judge’s dismissal order, and she filed a timely petition for review. There was no reason to believe that the Complainant was not capable of understanding, or gaining understanding of, the hearing notice, not withstanding her lack of facility with English. Her failure to do so did not provide her with good cause for missing the hearing. Accordingly, the dismissal of her complaint was affirmed. Further, the Labor and Industry Review Commission denied the Complainant’s request that it issue its decision in this matter in Spanish. If the Complainant had difficulty reading the decision of the Commission, it was her obligation to have it translated. Hernandez v. Sara Lee Corp. (LIRC, 05/21/04).

There is no provision in the Wisconsin Fair Employment Act that would allow parties to skip the administrative hearing and proceed directly to review by the Labor and Industry Review Commission. The Commission reviews the findings and order issued by the Administrative Law Judge. It provides a second level of administrative review. Hinkforth v. Bricklayers & Allied Craftsmen Dist. Council (LIRC, 02/23/04).

An administrative decision must include notice of any right of appeal and the time allowed for filing an appeal. Where the Complainant did not receive notice of appeal rights with the decision from the Labor and Industry Review Commission, the 30-day time period for appealing did not begin to run until the Commission sent the Complainant the proper notice. Josellis v. LIRC (Ct. App. Dist. IV, unpublished opinion, 08/22/03).

The Labor and Industry Review Commission’s authority may not be expanded by stipulation of the parties. The Commission is not an arbitration panel which is available to rule on any issue which two parties agree to submit to it. Therefore, LIRC will not accept an appeal of a non-final decision relating to a portion of the case before the Equal Rights Division even though the Respondent indicated that it did not object.Woodford v. Norwood Health Ctr. (LIRC, 05/11/01).

The decisions of Administrative Law Judges of the Equal Rights Division under the Wisconsin Fair Employment Act are the final decisions of the Department. They are reviewed by the Labor and Industry Review Commission only if a petition for review is filed. Polesky v. United Brake Parts (LIRC, 08/30/96).

The Labor and Industry Review Commission is an independent agency which is “attached” to the Department of Industry, Labor and Human Relations, of which the Equal Rights Division is a part for administrative and budgeting purposes only. (See, sec. 15.225, Stats.). The decisions of the Equal Rights Division are issued by that agency, out of its separate offices. LIRC has no involvement with and no control over the procedures followed by the Equal Rights Division with respect to its preparation and service of decisions or transcripts. Moreno v. Wis. Elec. Power Co. (LIRC, 06/21/96).

Even if LIRC substituted its findings for that of the Administrative Law Judge, this would not constitute a due process violation. The ultimate responsibility for finding facts is on the Commission, not on the Administrative Law Judge. Hoell v. LIRC, 186 Wis. 2d 608, 522 N.W.2d 234 (Ct. App. 1994)

If a Complainant had not authorized his attorney to enter into a settlement on his behalf, or to dismiss his complaint with prejudice on his behalf, then the Complainant's remedy was to attempt to prove malpractice by that attorney. The Labor and Review Commission is not the appropriate tribunal to determine whether the obligations of attorney to client were properly complied with. Johannes v. County of Waushara Exec. Comm. (LIRC, 11/01/93).

The Labor and Industry Review Commission is only required by its rules to rely on a transcript when the transcript has been prepared before the Administrative Law Judge’s decision was issued. Where the transcript has been prepared after that point, consideration of it is discretionary. Crosby v. Intertractor America Corp. (LIRC, 05/21/93).

The Complainant's attorney argued that LIRC should reverse the Administrative Law Judge’s award of significantly less in attorney's fees than she had sought. This did not constitute a valid petition for review as contemplated by the statute, since the attorney is neither a Complainant nor a Respondent in this matter. In this case, it was obvious that Complainant's attorney took this appeal without the knowledge and consent of the Complainant. Crosby v. Intertractor America Corp. (LIRC, 05/21/93).

LIRC may take jurisdiction of a case for the limited purpose of dismissing the complaint based upon the parties’ settlement. It was clearly the parties’ intent that their obligations should be defined not by the Administrative Law Judge's order but by their settlement agreement. Carey v. DeBoer, Inc. (LIRC, 06/11/92).

The Complainant's assertion in a petition for review of an Administrative Law Judge's decision that her attorney failed to provide her with proper legal representation was not an adequate basis for setting aside the Administrative Law Judge's decision or for granting a rehearing. Neuberger v. Twin Cities Storm Sash Co. (LIRC, 01/22/92).

Where the Commission remands a case to the Equal Rights Division for further hearing, the Administrative Law Judge should conduct a hearing and make further findings, which will then be subject to review by the Commission. It is uncertain whether the Commission has the authority to remand the case for further hearing, but without a further decision from the Administrative Law Judge, so that the Commission could make its own decision based upon the record made before the Administrative Law Judge. Pohlen v. Gen. Elec. Co. (amended order, LIRC, 04/26/91).

The requirement in sec. 111.39(4)(d), Stats., that the Department shall serve a “certified copy” of the findings and orders on the parties does not relate to questions of whether a petition for LIRC review has been timely filed so as to appropriately invoke the Commission’s jurisdiction, since sec. 111.39(5), Stats., merely requires that a petition be filed within 21 days from the date “a copy” of the decision is mailed. LIRC expressed no opinion whether the Department’s failure to serve certified copies of decisions would affect the enforceability of those orders in court under sec. 111.39(4)(d), Stats. Mundy v. Iselin Catering (LIRC, 08/08/90).