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

BONNIE J. ALTON, Employee

BROOKWOOD SCHOOL, Employer

and

JT NO 1 LAKE GENEVA C ET AL SCHOOL DISTRICT, Employer

and

JT NO 1 WHEATLAND ET AL SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003942MD, 06003943MD, 06003944MD


PROCEDURAL HISTORY


On August 3, 2006, a determination for the Jt. #2 Genoa Et. Al. School District, Brookwood School (Brookwood) was issued finding that as of week 24 of 2006, the employee performed services for an educational institution in an instructional, research, or principal administrative capacity during an academic year and had reasonable assurance of performing such services for an educational institution in the next academic year.

On August 3, 2006, a determination for the Jt. #1 Lake Geneva C Et. Al. School District (Lake Geneva) was issued finding that as of week 24 of 2006, the employee performed services for an educational institution in an instructional, research, or principal administrative capacity during an academic year and had reasonable assurance of performing such services for an educational institution in the next academic year.

On August 3, 2006, a determination for the Jt. #1 Wheatland Et. Al. School District (Wheatland) was issued finding that as of week 24 of 2006, the employee performed services for an educational institution in an instructional, research, or principal administrative capacity during an academic year and had reasonable assurance of performing such services for an educational institution in the next academic year.

The employee appealed all three matters and, on November 14, 2006, three separate hearings were conducted by Administrative Law Judge (ALJ) Junceau on behalf the Division of Unemployment Insurance, Department of Workforce Development. The employee appeared for all three hearings, neither Brookwood nor the Lake Geneva appeared; only Wheatland appeared for its hearing.

On November 15, 2006, the ALJ issued an appeal tribunal decision for each determination, finding for each school as follows:

The department petitioned the three decisions, contending that each was in error. Specifically, the petitioner argued that reasonable assurance should have been found for both Brookwood and Lake Geneva. With respect to Wheatland, the petitioner argued that although the reasonable assurance finding was correct, the decision should not have excluded the base period wages the employee earned in non-term/summer employment with Wheatland from the computation of benefits.

On March 1, 2007, the commission issued the following order for additional evidence and consolidation of the three named cases:

Pursuant to the authority granted under Wis. Stat. § 108.09(6)(d), the commission orders the taking of additional evidence before an administrative law judge acting on behalf the commission. The purpose of this order is twofold, namely:

1. to allow consolidation of the records of the above matters into one hearing record. To facilitate this, the hearings should be scheduled together, with copies of each synopsis and received exhibits sent to the parties for review prior to the hearing. The parties shall be given an opportunity to add additional material evidence and to allow for cross-examination.

2. to elicit evidence from Jt #1 Wheatland et al School District regarding its substitute teaching lists for the 2005/2006 and 2006/2007 school years. Specifically, for short-term substitute teaching positions, the commission has held that it is an employer's burden to present evidence that the employee's opportunity to work in the upcoming school year would be similar to the opportunity the employee had in the prior academic year or term; such evidence typically includes the number of substitutes the employer anticipates needing, how many substitutes it had to select from, how substitutes are selected (seniority, teacher preference, subject matter), and the ratio of teachers to substitutes, as compared to the prior year. Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC September 3, 1999)

On April 10, 2007, the ordered hearing was conducted by ALJ Jenkins. The employee appeared as did a representative for Brookwood, however, neither Lake Geneva nor Wheatland appeared.

At the hearing, additional evidence was provided and neither party objected to consolidation of the record of all three matters. Upon conclusion, the matter was forwarded to the commission for decision.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJs at the original and remand hearings. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In the 2005/2006 school year, the employee performed services as a substitute teacher for Wheatland. Departmental records reflect that on June 11, 2006 (week 24), the employee initiated a claim for unemployment insurance benefits.

The employee believed that her name would remain on the Wheatland substitute list for the 2006/2007 school year. Yet the district administrator, who appeared on behalf of Wheatland at the first hearing, did not have any firsthand evidence regarding any communications between the employee and Wheatland about her status for the 2006/2007 school year. He testified that it was his practice, while employed by prior school districts, to send letters at the beginning of summer to substitute teachers regarding their return in the fall. However, he explained that he just started the position with Wheatland on July 1, 2006 and, consequently, did not send any letters for the summer of 2006. Further, no firsthand evidence was offered to establish the nature of the substitute list for the 2006-2007 school year or how it compared to the list for the 2005/2006 school year. (1)

Based upon the employee's filing date for unemployment insurance benefits, her base period for computing her unemployment eligibility was the 2005 calendar year. This period, contains portions of the 2004/2005 and the 2005/2006 academic years as well as the summer recess for 2005. During this period, departmental records reflect that the employee earned base period wages with three employing units: Brookwood, Lake Geneva and Wheatland.

For Brookwood and Lake Geneva, the employee was on each school's substitute list in the 2004/2005 school year, with departmental records reflecting base period wages from each in the first and second quarters of 2005. For the 2005/2006 academic year, the employee was not on the substitute list for either Brookwood or Lake Geneva and departmental records reflect no wages from either in the third and fourth quarters of 2005.

The employee performed services as a six-week summer recess teacher for Wheatland in 2005 and then, for the 2005/2006 academic year, she performed substitute teaching for Wheatland. Departmental records reflect base period wages from Wheatland in the second through fourth quarters of 2005.
Wisconsin Stat. § 108.04(17)(a) provides, in relevant part and with emphasis added, (2)

(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 any educational institution in the 2nd such year or term.

The issue before the commission is the employee's eligibility for unemployment insurance benefits for the period between the 2005/2006 and the 2006/2007 school years, the calendar weeks ending June 17 through August 26, 2006 (weeks 24 through 34).

In this case, the ALJ found that the fact that the employee did not perform services for Brookwood or Lake Geneva in the 2005/2006 school year removed her from the definition of a "school year employee" for each of those schools within the meaning of Wis. Stat. § 108.04(17)(a).

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.

Essentially, the ALJ was interpreting the focus of Wis. Stats. §§ 108.04(17)(a) and 108.02(22m) to be more on the employing units than the type of employment. The consequence of such an interpretation is that reasonable assurance decisions would only be issued for school year employing units surrounding a break, whether it be an academic year or between terms period. This interpretation would ignore the implementation aspect of the reasonable assurance provisions in general. In Sarah J. Corona v. Kenosha Public School and Racine Unified School District, UI Dec. Hearing Nos. 06605019RC and 06605020RC (LIRC, April 13, 2007), the commission explained that the intent of the reasonable assurance provisions and the necessary implementation of those provisions requires a focus on the type of employment; requiring the removal of base period school year employment wages from the claimant's computation of benefits when the claimant's work meets the criteria set forth in Wis. Stat. § 108.04(17); conversely, all school year base period wages should remain in the computation for benefits if reasonable assurance does not exist. See Corona.

Given the type of employment focus, the initial steps of the reasonable assurance analysis should be (1) whether, for the relevant period before the "break," the employee was a "school year employee" of any of the institutions listed in Wis. Stat. § 108.02(22m) and (2) given the language "is ineligible for benefits based on such services for any week of unemployment," whether the employee has school year employment in her base period. See David E. Torrey Jr. v. City of Stevens Point, UI Dec. Hearing No. 06002857WR (LIRC, April 27, 2007).

The employee satisfies the first inquiry with her school year employment with Wheatland in the 2005/2006 academic year. The employee satisfies the second inquiry with school year employment in her base period.

While Brookwood, Lake Geneva and Wheatland are in the employee's base period, the base period wages for Wheatland were earned during the summer recess. The record lacks any evidence that the summer employment was part of a contract with employment during an academic year and, therefore, even if the reasonable assurance provisions applied to deny the employee benefits based upon the school year employment in her base period, the Wheatland summer recess wages would remain in the base period for purposes of computing the employee's eligibility for benefits. See UID 04-21, dated September 22, 2004 and Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B, page 4, dated April 23, 2007.  (3)  Only the base period wages in school year employment from Brookwood and Lake Geneva would have to be removed from the computation of benefits, if it is deemed that the employee has reasonable assurance within the meaning of Wis. Stat. § 108.04(17). Thus, Brookwood and Lake Geneva must receive a reasonable assurance decision.

Further, a reasonable assurance decision must be issued for Wheatland given the weeks of issue and employee's school year employee status with it between the 2005/2006 and the 2006/2007 academic years. (4)  The outcome of this decision governs the use of the employee's school year base period wages from Brookwood and Lake Geneva.

In the 2005/2006 academic year, the employee performed services as a substitute teacher for Wheatland. While the employee believed that her name would remain on the substitute list for the 2006/2007 academic year, there is no evidence that the employer ever provided her with such assurance and the employee had no prior academic year teaching experience with it to establish a pattern upon which she could rely. More importantly, despite the remand order, the employer failed to appear to establish that the employee's opportunity to work in the upcoming school year would be similar to the opportunity the employee had in the prior academic year or term. Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC September 3, 1999). No competent evidence was offered to establish the number of substitutes the employer anticipated needing, how many substitutes it had to select from, how substitutes were selected (seniority, teacher preference, subject matter), and the ratio of teachers to substitutes, as compared to the prior year. See Schulte. Finally, no evidence of any assurance for the 2006/2007 academic year from any other school district was presented.

The commission therefore finds that for

DECISION

The Brookwood decision of the administrative law judge is modified to conform with the above and, as modified, is affirmed. The Lake Geneva decision of the administrative law judge is modified to conform with the above and, as modified, is affirmed. The Wheatland decision of the administrative law judge is modified to conform with the above and, as modified, is reversed. Accordingly, beginning in week 24 of 2006, the employee's base period school year employment shall be included in her computation of benefits available and she is eligible for benefits, if she is otherwise qualified.

Dated and mailed May 23, 2007
altonbo . urr : 150 : 1   ET 481

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing the Wheatland appeal tribunal decision. The commission reached a differing legal conclusion based upon the facts adduced at the original and the remand hearings.

 

cc: Daniel J. LaRocque, DWD, UI Division, Bureau of Legal Affairs


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Footnotes:

(1)( Back ) Although documents were sent with the synopses for the consolidation hearing on April 10, 2006, these documents had not been previously identified, marked or received into evidence. At the April 10, 2007 hearing, these same documents were not identified, marked or received. Thus, the documents will not be considered by the commission in reaching its decision.

(2)( Back ) The underlined "any" was not in the original provisions but was altered by Wisconsin Act 197, effective April 25, 2004.

(3)( Back ) Page 4 of the Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B, (dated April 23, 2007), provides the following explanatory note:

Summer session is not considered a school term and is never included in the comparison to determine whether there is reasonable assurance of similar work. If the claimant only worked during the summer session, there is no between academic year/term issue.

(4)( Back ) Had Wheatland's only "role" been that of the summer non school year base period wages, a determination involving Wheatland would be immaterial.

 


uploaded 2007/05/29