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

TAMMY L BIRD, et al., Employee

MADISON AREA TECHNICAL COLLEGE DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03004683MDG


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. 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.

DECISION

The decision of the administrative law judge is amended as to group members and, as amended, is affirmed. (1)  Accordingly, in week 52 of 2002 through week 2 of 2003, Tammy L. Bird, Robyn M. Boyd, Luanne M. Krohn and Sara L. Parr are ineligible for benefits based on work performed for the employer.

Dated and mailed March 2, 2004
birdtam . usd : 150 : 2  ET 481

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employees timely petitioned the appeal tribunal decision. They argued that all four: Bird, Boyd, Krohn and Parr, lacked reasonable assurance from the employer, the Madison Area Technical College District (MATC), within the meaning of section 108.04(17)(g) of the Wisconsin statutes and all should be eligible for unemployment insurance benefits for the various weeks they filed during weeks 52 of 2002 through 2 of 2003, MATC's vacation and holiday recess (recess). The commission has reviewed the record and findings of the administrative law judge and affirms the decision for the reasons outlined below.

In Leissring v. DILHR, 115 Wis. 2d 475, 489 (1983), the Wisconsin Supreme Court held that an employee will be granted benefits unless he or she had "reasonable assurance" that the "terms and conditions of employment for the following year (were) reasonably similar to those in the preceding year." The petition does not dispute that Bird, Boyd, Krohn and Parr were school year employees but challenges both the administrative law judge's findings that the work before and after the recess was reasonably similar and whether each employee had reasonable assurance.

First, the commission addresses the similar work arguments. Wisconsin Administrative Code provision DWD 132.04 applies a 3-part test to determine whether the work is reasonably similar. The test requires that (1) the gross weekly wage is more than 80% of the gross weekly wage from prior academic year or term (2) the number of hours per week is more than 80% of the average number of hours worked per week in the prior academic year or term and (3) the employment involves substantially the same skill level and knowledge as the employment in the prior academic year or term. Wisconsin Administrative Code at DWD 132.04(2).

All four employees were part-time instructors for MATC before and after the recess. Their hourly instructor pay remained the same or increased after the recess. All continued to teach within the same program areas after the recess. Boyd's position and instructional hours did not change, with 13 hours per week before the recess and 13 hours per week after the recess.

Bird, Krohn and Parr all experienced slight reduction in instruction hours after the recess. Petitioner argues these reductions cause the 80% test to fail. The commission disagrees. For Krohn, as she taught two separate program areas, adult education and compulsory education and the adult education courses did not meet the first week, she only taught 10 instructional hours the first week. Thereafter, she taught both programs, totaling 13 hours per week. In essence, she was missing 3 hours the first week. Bird did not work the first week, so she lost all 13 hours that week. She returned to the 13 hour per week schedule for the remainder of the term. While the claimants' attorney argued that the 80% tests for wages and hours were not met by comparing individual weekly hours for the first week of the Spring semester against the average for the Fall semester, the commission finds this comparison too narrow. Wisconsin statute section 108.04(17)(g) references the comparison of the "period" after the recess, not the week. As such, the Commission agrees with the administrative law judge and respondent that the hours should not be compared weekly but as an average over the entire term or period. A similar approach is used in determining whether reasonable assurance exists in substitute teacher situations. Specifically, "a finding of reasonable assurance requires comparing the employe's composite preceding school year employment with all of the assurance of work for the next year." Jodie L. Fetzer v. West Bend Joint School Dist., UI Dec. Hearing No. 93605520WB (LIRC Feb. 17, 1994). The record reflects scheduled classes at least through week of May 6, 2003, resulting in at least 18 weeks for the term. Bird's loss of that one week reduces her average instructional hours for the Spring term of 94% of her Fall schedule. Krohn's reduction would be less, also over the 80% threshold. Since neither Bird nor Krohn experienced a reduction in hourly rate, the wage reduction is, at worst, the same as the hourly reduction when comparing between periods.

Lastly, with respect to Parr, the petitioner argued that Parr did not meet 80% because from Fall to Spring, she lost 1 of her 4 classes, resulting in a 25% reduction. However, the Commission disagrees with this comparison factor. All claimants are paid by instructional hours and that is the factor that should be used. For Parr, the 9 instructional hour Spring 2003 schedule is approximately 81% of her 11 instructional hour Fall 2002 schedule in terms of hours and wages.

Concluding that the work for Bird, Boyd, Krohn and Parr was similar, the commission next addresses petitioner's argument that they lacked reasonable assurance.

Reasonable assurance does not require a specific contract or guarantee of work, it may be established by custom. The legislature "has also determined that some degree of uncertainty is either necessary or acceptable, as long as it is reasonable." Ashleson v. LIRC, 216 Wis. 2d 23, 39 (Ct. App. 1997). Reasonable assurance is "assurance of employment sufficiently certain that a reasonable person in the same situation would rely upon such assurance in making decisions related to employment and income." Bruce A Brookman, et. al. v. Milwaukee Public Schools, UI Dec. Hearing No. 89602703MWG (LIRC, May 9, 1990). With respect to Parr, petitioner argues that Parr's class schedule was not set before the recess. However, Parr admitted that she knew what three classes she was assigned to teach at a staff meeting on December 18. This may have modified the earlier letter but still is sufficient for reasonable assurance that she would be teaching those classes after the recess. Additionally, before the break, Boyd and Krohn had their schedules set and knew they would return immediately after the break. With respect to petitioner's argument that Bird did not know if she would return, the administrative law judge found that she knew of her return date prior to the break and the commission sees no reason to disturb this finding.

Although the classes taught by Boyd, Krohn and Bird do have some funding concerns, the commission agrees with the administrative law judge that that these concerns are not sufficient to overcome the reasonable belief each had of continued employment based upon verbal conversations, schedules for the Spring 2003 semester and past practice. The classes were part of ongoing programs and, while Boyd and Bird may have been asked to trim the budget of their three person team, they knew the minor cuts they would make before the recess and understood that it was highly unlikely for their schedules to change after the recess. It was similarly unlikely that enrollment numbers would be so drastically low as to result in the cancellation of any of Parr's classes.

Finally, bumping as a jeopardizing feature for all four, was also extremely unlikely and does not overcome the reasonable assurance developed by past custom and verbal discussions about schedules. While petitioner's initial brief argues Parr was bumped out of one class, this mischaracterizes the situation. Once the Spring classes were assigned, the total instructional hours of her four classes exceeded the number allowable for a part-time instructor and, since that was Parr's status, one of those classes was given to another instructor.

For these reasons, the commission finds that Bird, Boyd, Krohn and Parr had reasonable assurance within the meaning of section 108.04(17)(g) of the Wisconsin statutes.

cc: 
Attorney Michele A. Peters
Attorney Jose Johanningmeier
Robyn M. Boyd
Luanne M. Krohn
Sara L. Parr


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Footnotes:

(1)( Back ) Freed withdrew her petition for review and a withdrawal decision was issued on December 11, 2003.

 


uploaded 2004/03/04