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

BRUCE E KANE, Employee

MADISON METROPOLITAN SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08002896MD


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, except that it makes the following modification:

Replace the final sentence of the tenth paragraph under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" with, "The employee's contention must be sustained."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits based upon work performed as a school year employee, if otherwise qualified.

Dated and mailed October 23, 2008
kanebru : 150 ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer petitioned the decision that the employee did not have reasonable assurance within the meaning of Wis. Stat. § § 108.04(17)(a)1 and Wis. Stat. 108.04(17)(d).

The petition does not specifically challenge any of the procedural and evidentiary rulings made by the administrative law judge, nor does it challenge any specific findings of fact as being unsupported by the record, nor does it specifically assert whether and why any conclusions of law are claimed to be in error. Thus, the commission has no specific indication of why the petitioner believes it should prevail on this record or what it claims was erroneously decided by the administrative law judge. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the administrative law judge are supported. Concluding that they are, the commission has adopted them as its own with minor modification noted above to correct a clerical error. Specifically, with respect to the employee's work in "an instructional capacity," approximately 67% of the employee's instructional work was in a long-term capacity. More importantly, that long-term work was all by request from one school for three separate maternity leaves at that school. Without any evidence as to the total number of actual teaching positions, or the number of teachers at Sherman Middle School, the employer failed to establish a comparable demand for such long-term work in the 2008/2009 academic year. See Jodie L. Fetzer v. West Bend Joint School Dist., UI Dec. Hearing No. 93605520WB (LIRC Feb. 17, 1994) and Wis. Admin. Code § DWD 132.04 (2). Finally, with respect to the "other than" instructional SEA work, all the employee's work in this capacity was long-term. Without any evidence as to the total number of such positions, the employer failed to establish a comparable need and opportunity for the employee in the 2008/2009 academic year. See Mary E. Lavin v. Madison Metropolitan School District, UI Dec. Hearing No. 07003314MD (LIRC March 28, 2008).




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