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

KATHLEEN L. REIN STEINGRABE, Employee

HUSTISFORD SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05600905WB


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A late 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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Late Petition Issue

On May 11, 2005, the employee attended the appeal tribunal hearing for this matter, involving the issue of whether she had reasonable assurance in weeks 52 of 2004 and 1 of 2005, during the employer's holiday recess. The appeal tribunal decision was issued and mailed on May 23, 2005, with a June 13, 2005 appeal deadline.

At the time of the above hearing and during the appeal period, the employee had a pending petition with the Labor and Industry Review Commission regarding the issue of reasonable assurance during week 48 of 2004, the employer's Thanksgiving break. On August 10, 2005, the commission issued a reversal decision in that matter, for hearing number 04611343WB, finding that based upon a comparison of her services before and after the break with her base period services, she did not have reasonable assurance and was eligible for unemployment insurance benefits. In that decision, the commission explained that the base period comparison was called for by Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991). The Wanish case was also referenced in Kelly v. Westby Area Schools, Kickapoo Area School District, Richland School District and Viroqua Area School District, UI Dec. Hearing Nos. 04003695LX, 04003696LX, 04003697LX and 04003698LX (LIRC February 25, 2005) which was posted on the LIRC Internet Webpage on February 28, 2005.

After receiving the reversal decision, the employee wrote a September 4, 2005 petition to the May 23, 2005 appeal tribunal decision. The employee cited the week 48 reversal decision as the basis for the late petition.

Wisconsin Stat. § 108.09 (6)(a) requires the commission to dismiss any petition for review filed more than 21 days after the appeal tribunal decision was mailed to the party's last-known address, unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner.

Thus, the first issue for the commission is whether the employee's petition establishes probable good cause that her failure to file a timely petition was for a reason beyond her control.

When the employee received the Holiday recess reasonable assurance denial decision, she already had filed a petition in the Thanksgiving break matter. She was not required to wait for the commission to act on that matter before filing a petition. She failed to explain why she did not file timely, only why she was attempting to file a petition late. Thus, she has failed to establish probable good cause for failing to file a timely petition.

Yet, Wisconsin Stat. § 108.09 (6)(c) provides that, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within 2 years from the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d). Wisconsin Stat. § 108.09 (6)(d) provides that the commission may affirm, reverse, modify or set aside the decision on the basis of evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings.

As it is within two years from the date of the appeal tribunal decision the commission must next decide whether the appeal tribunal's failure to compare the employee's pre and post break services with her base period services constitutes mistake within the meaning of Wisconsin Stat. § 108.09 (6)(c).

The commission finds that the failure to compare the employee's base period services with those after the break to determine whether they were reasonably similar, in light of the Wanish and Kelly cases constitutes mistake.

The commission therefore finds that pursuant to Wisconsin Stat. § 108.09 (6)(c), it has jurisdiction to act on the merits under Wisconsin Stat. § 108.09 (6)(d), in the above matter.  
 

Merits

The employee has worked for 28 years for the employer, a school district. In the 2003-2004 school year, the employee worked as a librarian at 60% of a full-time teaching contract. In April of 2004, she was notified that she would be only working a 30% librarian position for the 2004-2005 school year. The employee's 2004-2005 position was equivalent to 12 hours per week, four hours per day, three days a week. Prior to the 2003-2004 school year, the employee worked 40 hours per week for the employer, a 100% position.

On January 24, 2005 (week 5), the employee's contracted position for the remainder of the 2004-2005 school year was increased to 60% because she was unable to complete all the duties expected of her by the school district.

Department records reflect that, on July 15, 2004, a determination was issued holding that the employee was eligible for unemployment insurance benefits as of the calendar week ending June 12, 2004 (week 24)  [1]   because, although the employee worked the 2003-2004 school year, her position was reduced from 60 percent to 30 percent for the 2004-2005 school year. The determination was not appealed.

Departmental records further reflect that the employee filed for and received partial unemployment insurance benefits in the calendar weeks ending June 12, 2004 through September 11, 2004 (weeks 24 -37) and October 30, 2004 (week 44). The employee had a weekly benefit rate of $329.00 and was able to earn up to $514.00 per week and still be eligible for partial unemployment insurance benefits according to the partial benefit computation found at Wis. Stat. § 108.05(3). The employee's weekly benefit rate was determined by her base period employment, which consisted solely of her services for the employer in the second quarter of 2003 through the first quarter of 2004.

The weeks of issue are the calendar weeks ending December 25, 2004 and January 1, 2005 (weeks 52 and 1), with the school district's holiday recess from December 24, 2004 through Friday, January 31, 2005 when the employee filed a claim for partial unemployment benefits.

Wis. Stat. § 108.04(17)(g) provides, as follows:

"A school year employee of an educational institution who performs services as described in par. (a) [2]  or (d) [3]  is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed services for any educational institution in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that he or she will perform the services described in par. (a) or (d) for any educational institution in the period immediately following the vacation period or holiday recess."

The next issue before the commission is whether, as of weeks 52 of 2004 and 1 of 2005, the employee was a school year employee who had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(g).

Wis. Stat. § 108.02(22m) provides that a

"'School year employee' means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require performance of services on a year-round basis."

The employee's services were performed as a "school year employee," within the meaning of the above; she was employed by and her services were on behalf of an educational institution and the services were not performed on a year-round basis.

Additionally, while the employee worked partially for the employer and was paid her normal weekly salary, the commission finds that week 52 was still a "week of unemployment" within Wis. Stat. § 108.04(17)(g). Specifically, in Brookman et al., v. Milwaukee Public School, UI Dec. Hearing No. 89603455MWG (LIRC August 9, 1990), the commission defined "any week of unemployment which occurs during an established and customary vacation period or holiday recess" as "any calendar week in which some period of unemployment occurs during an established and customary vacation period or holiday recess." [4]

Before and after the Holiday recess the employee's services were the same. Yet, in Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991), "such services" was also interpreted as the services that initially qualified the employee for benefits, namely, the base period services. Given this, the commission must also determine how the employee's services before and after the recess compare with her base period services, primarily consisting of the .6 position.

Wis. Admin. Code § DWD 132.04 provides guidance as to what is reasonably similar. While the code section does not specifically reference Wis. Stat. § 108.04(17)(g) it does reference an "established and customary vacation period or holiday recess," which is the claimant's situation in week 48 of 2004. The standard set forth in Wis. Admin. Code § DWD 132.04(2) is to treat the terms and conditions of the work as reasonably similar if:

"(a) The gross weekly wage is more than 80% of the gross weekly wage earned in the academic year or term which preceded the weeks of unemployment;

(b) The number of hours per week is more than 80% of the average number of hours worked per week in the academic year or term which preceded the weeks of unemployment; and

(c) The employment involves substantially the same skill level and knowledge as the employment in the academic year or term which preceded the weeks of unemployment."

In this case, the employee's position was cut by 50 percent from the 2003-2004 to the 2004-2005 school years. Even though her hours were increased on January 24, 2005, the increase occurred after the break and cannot be considered in determining whether reasonable assurance existed in weeks 52 and 1. The work that the employee had reasonable assurance of before and after the weeks 52 of 2004 and 1 of 2005 holiday recess was not reasonably similar to her base period services.

The Commission therefore finds that, with respect to the Hustisford School District, the employee performed services in an instructional, research, or principal administrative capacity before and after a customary vacation period or holiday recess occurring in weeks 52 of 2004 and 1 of 2005 but she did not have reasonable assurance of performing such services, within the meaning of Wis. Stat. § 108.04(17)(g).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the base period wages paid by this employer should be used for the employee's eligibility in weeks 52 of 2004 and 1 of 2005 and the employee is eligible for benefits in weeks 52 of 2004 and 1 of 2005, if otherwise qualified.

Dated and mailed October 6, 2005
reinska . urr : 150 : 1  PC 731  ET 481

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding her impression of witness credibility and demeanor because the commission's reversal is based upon a differing legal conclusion after application of Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991) .



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) Presumably, the first week of the break between the 2003-2004 and 2004-2005 school years.

(2)( Back ) Wis. Stat. § 108.04(17)(a) deals with a school year employee's "services in an instructional, research or principal administrative capacity."

(3)( Back ) Wis. Stat. § 108.04(17)(d) deals with a school year employee's "services other than in an instructional, research or principal administrative capacity."

(4)( Back ) At the time of the Brookman decision, the applicable statutory section was numbered Wis. Stat. § 108.04(17)(c).

 


uploaded 2005/10/10