Laura Gutierrez, Petitioner,
v.
The Industrial Claim
Appeals Office of the State of
Colorado,
Department of Labor and Employment,
Division
of Employment and Training, and
Monfort of Colorado, Inc.,
Respondents.
No. 91CA1125
841 P.2d 407
Colorado
Court of Appeals
Div. III.
October 22, 1992.
Ann M. la Plante, Colorado Rural Legal Services, Inc., Greeley,
Colorado, for Petitioner.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief
Deputy Attorney General, Timothy M. Tymkovich, Solicitor General,
Evelyn Bachrach Makovsky, Assistant Attorney General, Denver,
Colorado, for Respondents Industrial Claim Appeals Office and
Department of Labor and Employment, Division of Employment and
Training.
No Appearance for Respondent Monfort of Colorado, Inc.
REED, Judge.
Laura Gutierrez, claimant, seeks review of the final order of the
Industrial Claim Appeals Panel denying her claim for full
unemployment compensation benefits. She contends that the Panel
erred in concluding that the employer, Monfort of Colorado, Inc.,
was not barred from participating in the proceedings because it had
filed an untimely response to a request for information by the
Employment and Training Division. We disagree and, thus, affirm.
After the filing of the claim, the Division mailed a Request for
Job Separation Information to the employer on December 27, 1990.
Under § 8-74-102(1), C.R.S. (1986 Repl. Vol. 3B), the employer had
twelve days from the date of mailing of the request to respond; the
statute provides that "such information must be postmarked or
received by the division within twelve calendar days from said date
of mailing." (emphasis added) Failure to make a timely response bars
the employer from protesting the claim. See Division of Employment
and Training Regulation No. 7.2.8, 7 Code Colo. Reg. 1101-2.
The employer's twelve days expired on January 8, 1990. The
employer's response was dated January 8, 1990, and the envelope in
which it was sent bore a private postage meter mark of that date. It
did not, however, have a postmark affixed directly by the United
States Postal Service, nor was it postmarked with a corrected date
stamped by that office. The response was not received by the
Division until January 17.
The deputy ruled that the employer's response was timely and
denied the claim. On appeal, the referee ruled that the response was
timely because the evidence established that it was mailed on
January 8, permitted the employer to participate in the hearing, and
affirmed the deputy's decision denying the claim. The Panel
affirmed.
Claimant contends that the Panel erred in ruling that the
employer was properly permitted to participate in the hearing before
the referee. We disagree, concluding that the employer's response
was timely.
The term "postmark" is not defined in any applicable statute or
regulation. Claimant cites the dictionary definition of postmark in
Webster's Third New International Dictionary 1772-73 (1981)
as an "official postal marking on a piece of mail" in support
of her contention that the private postage meter mark was not a
postmark.
However, under United States Postal Service regulations, private
postage meter marks are official postmarks imprinted under license
from the Postal Service. Privately metered mail is entitled to all
the privileges applying to the various classes of mail, and such
mail is not canceled or postmarked by the Postal Service unless
incorrectly dated. See 39 C.F.R. §§ 111.1 - 111.5 (1991);
United States Postal Service Domestic Mail Manual §§ 144.111,
144.2, 144.471, 144.532; 144.534 (1991); Bowman v. Administrator,
30 Ohio St. 3d 87, 507 N.E.2d 342 (1987).
To discourage misuse of private postage meters, such as incorrect
dating, the Postal Service conducts random checks of privately
metered mail. Domestic Mail Manual § 144.6. See Bowman v.
Administrator, supra.
Further, if the date stated by the meter mark differs from the
date the item is actually deposited in the mail, the item is
postmarked with the corrected date of deposit. Bowman v.
Administrator, supra; Domestic Mail Manual §§ 144.471,
144.534; postal Operations Manual § 423.35.
In Bowman, the applicable regulation, like § 8-74-102(1),
required the document to be "postmarked" before the expiration of
the specified period. Based on the Postal Service regulations, the
court held that private postage meter marks were postmarks under the
regulation, and the date reflected by the mark is presumptively
accurate as to the date the item was mailed. See also Haynes v.
Hechler, 392 S.E.2d 697 (W.Va. 1990).
We agree and conclude that private postage meter marks are
postmarks within the meaning of § 8-74-102(1). Further, the record
here supports the presumption that the protest was in fact mailed
upon the meter date. Thus, the employer's response was timely, and
it was properly permitted to participate in the hearing.
Because of our resolution of this issue, we need not address the
other issues raised by claimant.
The order is affirmed.
Chief Judge Sternberg and Judge Marquez concur.
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