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

CHERYL L KINLOW, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600543MW


On January 14, 2002, the Department of Workforce Development issued an initial determination which denied benefits for weeks 51 of 2001 through 3 of 2002 on reasonable assurance grounds. The employee filed a timely request for hearing on the adverse determination, and hearing was held on March 6, 2002 in Milwaukee, Wisconsin before a department administrative law judge. On March 12, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked during two years as a substitute teacher for the employer, Milwaukee Public Schools. Her last day of work was in or about week 37 of 2001, the calendar week ending September 15. Since January of 2000, the employee has also worked as an instructor for another school, Milwaukee Area Technical College. She worked for that employer through December 22, 2001 (week 51), the end of the fall semester. She began working for that employer again on January 22, 2002 (week 4), when the spring semester began. The issue in this case is whether the employee had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(a), of work after the holiday period such that she is ineligible for unemployment insurance during those weeks. The commission concludes that the employee had no reasonable assurance of spring semester work with the Milwaukee Public Schools, and so reverses the appeal tribunal decision. There remains the issue of whether the employee had reasonable assurance overall, that is, when comparing all of her late fall 2001 employment with all of her spring 2002 employment, an issue which the commission believes is properly taken up in the first instance by the Department of Workforce Development. The record indicates there also may be an issue regarding the employee's week 37/2001 quit of employment with the Milwaukee Public Schools, another issue properly taken in by the first instance by the department.

Wisconsin Stat. § 108.04(17)(a) provides:

(17) EDUCATIONAL EMPLOYEES. (a) A school year employee of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:

1. During the period between 2 successive academic years or terms, if the school year employee performed such services for an educational institution in the first such year or term and if there is reasonable assurance that he or she will perform such services for an educational institution in the 2nd such year or term: . . .

The employee worked for Milwaukee Public Schools until mid-September of 2001. At that time the employee quit that employment due to dissatisfaction over what the employee termed the sporadic nature of the substitute teaching assignments Milwaukee Public Schools provided the employee. Although the record is not clear, it appears that the employee quit this employment in order to increase her teaching hours with a third organization she taught for, the Next Door Foundation. In any event, once the employee quit her employment with Milwaukee Public Schools, there would no longer be a reasonable assurance issue with that school employer unless it affirmatively sought out the employee and provided her with new assurance regarding the school term after the winter holiday break. The record indicates no such assurance was provided the employee, so the employee cannot be said to have reasonable assurance of subsequent employment with Milwaukee Public Schools.

The commission therefore finds that, while the employee performed services in an instructional, research, or principal administrative capacity for Milwaukee Public Schools during an academic year or term, yet as of week 51 of 2001 she did not have reasonable assurance of performing such services in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(a), with Milwaukee Public Schools.

Other issues remain. First, there is the matter of the employee's overall reasonable assurance of work after the 2001 winter break. The administrative law judge found reasonable assurance, based upon the employee's work for Milwaukee Area Technical College. The employee also worked much of the fall of 2001 for the Milwaukee Achievers (which the commission assumes is the Next Door Foundation). The record in the present case indicates only that the employee's employment with the Next Door Foundation ended on December 31, 2001. There is no evidence as to whether that is school employment under Wis. Stat. § 108.04(17) or, if it is, whether the employee had reasonable assurance of performing services for that institution in the spring of 2002. The question of the employee's overall reasonable assurance after the 2001 winter break therefore remains to be determined. There also is the matter of the employee's quit of employment with Milwaukee Public Schools. It is unclear to the commission whether this matter has been investigated by the department, assuming it is a proper matter for department investigation. The commission is remanding this case to the department for whatever consideration of these issues it deems appropriate.

DECISION

The appeal tribunal decision is reversed as to Milwaukee Public Schools. This matter is remanded to the Department of Workforce Development for further proceedings consistent with the commission's findings.

Dated and mailed August 23, 2002
kinloch . urr : 105 : 6  ET 481

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, there is no factual dispute as to the lack of reasonable assurance in the spring of 2002 with respect to Milwaukee Public Schools.


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uploaded 2002/09/03