BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

GERALDINE P. BOYM, ET AL., Employee

Involving the account of

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-606363 MWG


Initial Determinations issued by a Department Deputy for the four employes listed in the attached appendix held that as of week 24 of 1989, the employes had worked for the employer in an instructional, research or principal administrative capacity and had contracts or reasonable assurance of performing such services in the next academic year or term, within the meaning of section 108.04(17)(a), Wis. Stats. Accordingly, unemployment benefits were denied. The employes timely appealed and a hearing was scheduled before an Appeal Tribunal on September 6, 1989. The employes failed to appear at the hearing and on September 8, 1989, an Appeal Tribunal Decision was issued which dismissed their appeals. On September 13, 1989, the Appeal Tribunal Decision was set aside and a new hearing was scheduled with respect to the reason for the employes' failure to appear and, provisionally, with respect to the merits of the cases. This new hearing was held on October 19, 1989, and representatives of the employes and of the employer appeared. Testimony was taken with respect to the failure to appear and with respect to the merits of the cases. On November 1, 1989, an Appeal Tribunal Decision was issued which dismissed the employes' appeals on the basis that good cause had not been demonstrated for the failure to appear at the original hearing scheduled for September 6, 1989. The employes petitioned for review of that decision by the Commission on November 21, 1989.

Based on the evidence and the applicable law, and having considered all of the arguments presented by the parties, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The representative of the employes, who was to appear on their behalf at the September 6, 1989 hearing, did receive timely notice of that hearing. He inadvertently marked his calendar to indicate that the hearing was to be held on September 13, 1989. This involved marking the space on the calendar below the space for September 6, 1989.

The Commission concludes that the representative's explanation that he marked the wrong "Wednesday box" on his calendar is credible and is an understandable error. The Commission, as a matter of law, disagrees with the Administrative Law Judge's decision, that this was only a "poor excuse." Therefore the Commission finds that the failure to appear at the September 6, 1989 hearing was for good cause within the meaning of sec. 108.09(4), Wis. Stats, and Chapter ILHR 140, Wis. Adm. Code.

At the hearing held on October 19, 1989, the Administrative Law Judge took testimony on the merits of the reasonable assurance issue as well as on the issue of good cause for failing to appear. Since the record on that issue is complete and the issue is ready for decision, the Commission will enter a decision on that issue pursuant to its authority under sec. 108.09(6)(d), Wis. Stats., rather than remand the matter to the Administrative Law Judge for a decision.

The four employes in this case have worked for the employer as substitute teachers for varying periods of time. Their first day of employment ranged from January 1965, to January, 1987. The employer is a municipal school system. All four were employed as substitute teachers during the 1988-1989 school year. The last day of classes for that year was Monday, June 12, 1989 (week 24).

The 1989-1990 school year started on Friday, September 1, 1989 (week 35). The employes were offered employment as substitute teachers for the 1989-1990 school year by a letter dated June 5, 1989. They each accepted the offer. The employes have stipulated that they received a reasonable assurance of employment for the 1989-1990 school year within the meaning of sec. 108.04(17)(a), Wis. Stats. They agree that they are not eligible for benefits in weeks 25 through 34 of 1989.

The employes do contend that they are eligible for benefits in weeks 24 and 35 of 1989 since the last day of the 1988-1989 school year fell in week 24 of 1989 and the first day of the 1989-1990 school year fell in week 35 of 1989. The school system argues that the employes are not eligible for benefits for those weeks.

Section 108.04(17)(a), Wis. Stats., provides:

(17) EDUCATIONAL EMPLOYEES
(a) An employe of an educational institution or an employe of a government unit or nonprofit organization who provides services to or on behalf of an educational institution and 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 during a period between 2 successive academic years or 2 regular terms, whether or not successive, if such employe performed such services in the first such academic year or term and if there is a contract or a reasonable assurance that such employe will perform such services in the 2nd such academic year or term.

The employes contend that the fact that classes were held on Monday, June 12, 1989 (week 24) and Friday, September 1, 1989 (week 35) required a finding that such weeks were not weeks of unemployment within the meaning of the above-quoted statute.

"Week of unemployment" has not been defined in Wisconsin unemployment compensation statutes, nor has the term been defined judicially. The term "employment," while subject to numerous statutory exceptions, means the performance of services for pay, pursuant to section 108.02(15), Wis. Stats.  Section 108.02(27), Wis. Stats., defines "week" as a calendar week, starting Sunday and ending Saturday. However, section 108.02(20), Wis. Stats., provides that an employe is "partially unemployed" in any week for which he or she earns wages and is eligible for some benefits under section 108.05(3), Wis. Stats.  Section 108.02(25), Wis. Stats., provides that an employe is "totally unemployed" in any week for which he or she earns no wages. It is thus clear that "unemployment" exists in a calendar week even if the period of unemployment is less than the entire calendar week. Therefore, "any week of unemployment" in the above-quoted statute means any calendar week in which some period of unemployment occurs during an academic recess.

As applied to the instant case, the Commission's interpretation of the statute requires denial of the unemployment compensation for weeks 24 and 35 of 1989, as well as the interim weeks. While the Commission is aware that the instant decision may be argued to conflict with certain past administrative decisions and at least one non-precedenting circuit court decision, the Commission considers that its present interpretation best comports with the underlying unemployment compensation policy of not subsidizing school employes' customary or agreed-to vacation periods.

In the brief presented in this matter, the employes have argued that a Commission decision reaching this result is an administrative rule that is invalid since it was not adopted in accordance with the requirements of Chapter 227, Wis. Stats. The Commission disagrees.

The Commission's decision in this case is consistent with its decisions in other recently decided cases. Becker et al v. Milwaukee Public Schools, LIRC Hearing No. 88-604031 MWG (May 9, 1990). Those decisions and this one are a result of the application of the statute to the facts of this case. Additionally, it should be noted that the Commission's authority to adopt rules is limited to rules of procedure. Sec. 101.04(2), Wis. Stats.

The Commission therefore finds that each of the employes herein worked in an instructional, research or principal administrative capacity for the employer in the academic year or term ending in week 24 of 1989, and that as of such week they had reasonable assurance of performing such services in the academic year or term commencing in week 35 of 1989, and that weeks 24 through 35 of 1989 are weeks of unemployment occurring between two academic years or terms, within the meaning of section 108.04(17)(a), Wis. Stats.

DECISION

The Initial Determinations dated June 28, 1989 are affirmed. Accordingly, the employes are ineligible for unemployment compensation for weeks 24 through 35 of 1989.

Dated and mailed August 9, 1990
160 - CD1006   ET 481  PC 712.2  - Hearing, Failure To Appear - mis-marked calendar - mismarked calendar

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


cc: 
Jacqueline Boynton, Attorney
Sid Hatch, c/o MTEA
Ms. JoAnne Campbell, MPS


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