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

DAVID E TORREY JR, Employee

CITY OF STEVENS POINT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002857WR


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee performed services for the City of Stevens Point Transportation Dept. as a bus driver. He has worked approximately 19 and one half years for the employer.

The City contracts with the University of Stevens Point to provide additional bus services during the fall and spring semester when students attend school. These routes are not exclusive to students.

As of January 1, 2006, the employee successfully bid for and began driving a University bus route. He understood that the bus service did not run during the summer months and that he could bid the same or a different route in June. Both the employer and the employee agreed that the employee could be required to drive bus during the summer recess for workers who are on vacation or to fill in for otherwise vacant routes. At the end of the spring semester, on May 18, 2006 (week 20), the employer provided the employee with the following letter:

As you know, your work schedule as a university route Bus Operator does not include any scheduled work after May 19, 2006. You are, however, guaranteed the right to bid for a university route driver position with the bidding process beginning on June 1, 2006. As a result, you are assured of a driving assignment with the Stevens Point Transit Department as of July 1 or the start of the next academic year.

In addition, I am writing to advise you that the Transit Department may have additional work available during the next several months and will be contacting you when extra work is available as per Article 9, Section H of the Agreement between the City of Stevens Point and Stevens Point Transit Employees Local 309, AFSCME.

The employee filed a claim for unemployment insurance benefits on June 5, 2006 (week 23). Based upon this filing date, his base period consisted of the calendar year 2005. In 2005, the employee performed services as a "regular" city bus driver for the employer. On September 1, 2006 (week 35), the employee returned to driving the University bus route.

The employer petitioned the appeal tribunal decision contending that the employee should be denied benefits between the spring 2006 and the fall 2006 University academic terms, arguing that the employee was a school year employee, who had reasonable assurance of performing similar services, under Wis. Stat. § 108.04(17)(e). This contention cannot be sustained.

Wis. Stat. § 108.04(17)(e) provides, with emphasis:

A school year employee (1) of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution who performs service other than 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 terms if the school year employee performed such services for such a government unity or nonprofit organization in the first such year or term and there is reasonable assurance that he or she will perform such services for such a government unit or nonprofit organization in the 2nd such year or term.

Given the lack of any "school year employment wages" within the emloyee's base period, any finding of reasonable assurance as of week 22 of 2006 is moot. In particular, the effect of a reasonable assurance finding is that all school year employment is removed from the base period upon which benefits are computed. With no school year employment in the base period, a finding of reasonable assurance, if made, does not change the employee's benefit computation.

Additionally, at the hearing, the employer further argued that the employee should be denied benefits under Wis. Stat. § 108.04(7m), the reduction in hours quitting disqualification. However, like the ALJ, the commission finds that the employee's decision to bid on the university route was not an indefinite reduction in hours and, thus, that statutory section does not apply.

Finally, with respect to the petitioner's request to have Wis. Stat. § 108.04(1)(b)2, the voluntary leave section applied in this matter, the commission does not have jurisdiction of that provision and will not make a finding under it.

The commission therefore finds that as of week 22 of 2006, the reasonable assurance provisions found at Wis. Stat. Wis. Stat. § 108.04(17)(e) are not applicable, as the employee has no school year employment in his base period.

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2006, if otherwise qualified.

Dated and mailed April 27, 2007
torreda . urr : 150 : 1  ET 481

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


cc: Attorney Christopher Toner



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Footnotes:

(1)( Back ) Wis. Stat. § 108.02(22m) provides: School Year Employee. "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 the performance of services on a year-round basis.

 


uploaded 2007/04/30