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

MICHAEL R SCHMIDMAYR, Employee

CITY OF STEVENS POINT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09005412WR


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 has worked for four years as a bus driver for the employer, a municipal transit service. The employee filed a claim for unemployment insurance benefits on June 28, 2009 (week 29) and on August 11, 2009 (week 33).

The employer contracts with the Stevens Point University (UWSP) to provide bus service on the campus area during periods in which school is in session; specifically during the following two most recent periods: September 2, 2009 through December 18, 2009 and January 25, 2010 through May 21, 2010. The employer agreed to accept student university cards for admittance and the cards were valid on all employer bus routes. Additionally, the "university" routes were not exclusive to the students but were open to public use.

The employer has 19 bus routes available for bid, both regular municipal transit and UWSP campus bid routes. It bids the routes to the drivers at least twice a year, in December and June.(1) The top half of the driver seniority list gets to bid on the first day of the month while the second half of the list bids on the 15th day of the month. The bid routes are then assigned on January 1 and July 1. The routes, regular transit and UWSP campus routes, with their hours, are listed below as follows:

 

Name

 Year Round

Weekly Hours

UWSP

Weekly Hours

Total Weekly Hours

Green AM

40

0

40

Blue AM

40

0

40

Red AM

40

0

40

Yellow AM

40

0

40

Point Plus Full

40

0

40

Point Plus /Red PM

39

0

39

Green PM

20.5

5.75

26.25

Blue PM

20.5

5.75

26.25

Yellow PM

19.0

5.75

24.75

Fill In

18.75

5.75

24.50

Point Plus / Breaks Route

28

5.75

33.75

Replacement Operator

0

0

0

UWSP Weekday Campus

0

28.75

28.75

UWSP PM/Sat. Campus

0

26.50

26.50

UWSP PM/Sat. Campus Shopping

0

28.00

28.00

Point Plus PM & Saturday

0

26.75

26.75

Late Night East

0

18.00

18.00

Late Night North

0

18.00

18.00

Late Night Relief/ Service

0

16.50

16.50

The employee is a member of Local 309, AFSCME AFL-CIO, which operates under a negotiated contract with the employer. The employee performs driving services for the employer primarily by bidding on routes. He receives additional "on call" work as it becomes available. The employee is 14th in seniority on the 19 member driver seniority list.

From September to December 31, 2008, the employee performed services as a driver on the Green PM route for the employer. The route consisted of 20.5 hours per week year round with an additional 5.75 hours per week when UWSP was in session.

On December 10, 2008, the employer had awarded bids effective January 2, 2009, reflecting that the employee was to have the UWSP PM Saturday Commute route. On December 23, 2008, the employer rebid routes awarded to the eight least senior and the employee was awarded the UWSP Weekday Campus route effective January 1, 2009. Awarded bids, effective January 26, 2009, indicted that the employee still had the UWSP Weekday Campus Commute route but indicated that the Yellow PM and replacement operator routes were open. On March 30, 2009, a memo was sent to the bus operators regarding bid awards; the bids effective April 6, 2009 still reflected that the employee had the UWSP Weekday Campus Commute route but indicated that the replacement operator routes were filled.

For the Spring 2009 semester at UWSP, the employee performed additional driving duties for the employer in six pay periods.

On May 1, 2009 (week 18), the employer sent the employee a letter which indicated that he was not scheduled for work after May 15, 2009 (week 20) but was

. . . guaranteed the right to bid for a university route driver position or other driver position with the bidding process beginning on June 1, 2009. . . you are assured of a driving assignment with the Stevens Point Transit Department as of July 1, 2009 or the start of the next UWSP academic year which begins on September 2, 2009.

The letter also advised him that the employer

. . . may have additional work available during the next several months and will be contacting you when extra work is available per Article 9, Section H . . .

of the labor agreement between the employer and the union.

The employee testified that he did not perform campus driving work after May 10, 2009. He further testified that he performed additional driving work of 14 hours between May 10 and July 4, 2009.

On June 17, 2009 (week 25), the employer posted bid awards, effective July 1, 2009, reflecting that the employee was assigned the UWSP PM/Saturday Campus route.

On June 23, 2009 (week 26), the employer posted bid awards, effective July 1, 2009, reflecting that the employee was assigned the Green PM route (a municipal transit route). The employee drove this route from July 1 to August 10, 2009.

The bids were subsequently redone and, effective August 10, 2009 (week 33), bid awards were posted reflecting that the employee was awarded the UWSP PM/Saturday Campus route.

Then, again the bids were redone, due to illness, with a posting on September 9, 2009, effective September 14, 2009 (week 38), indicating that the employee received the Green PM route. He performed driving work on this route in September and October 2009. He then returned to the college route in November 2009.

The employee is seeking benefits during a few weeks in the 2009 summer. Specifically, he filed a claim for unemployment insurance for weeks 26 and 33 through 35 (calendar weeks ending June 27 and August 15 through 29, 2009).

The initial determination denied benefits and the employee appealed. After a hearing the ALJ found that the employee was not a school year employee and, in a footnote, alternatively indicated that if the employee had been found to have been a school year employee there was no reasonable assurance. Benefits were allowed.

The employer petitioned, arguing that the employee should be denied benefits during the summer recess period under the "Educational Employee" disqualification found at Wis. Stat. § 108.04(17).

Wis. Stat. § 108.04(17) provides that wages earned in school year employment cannot be used to qualify or pay benefits during regular non-work periods if the employee has reasonable assurance of similar work when school resumes. Specifically, the reasonable assurance provisions require the removal of base period school year employment wages from a claimant's computation of benefits when the claimant's work satisfies 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. Sarah J. Corona v. Kenosha Public School and Racine Unified School District, UI Dec. Hearing Nos. 06605019RC and 06605020RC (LIRC, April 13, 2007).

The paragraphs of Wis. Stat. § 108.04(17) are divided by type of employer, type or capacity of employment and the period of unemployment involved. The nature of the employee's services are used to determine whether they are to be categorized as (1) in an instructional, research or principal administrative capacity, or (2) in other than an instructional, research or principal administrative capacity. Part III B of the Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B, (dated April 23, 2007), provides that bus drivers fall within the "other than" an instructional, research or principal administrative capacity. Since the employer is not educational institution but is a government unit which provides services to or on behalf of any educational institution the applicable paragraph is Wis. Stat. § 108.04(17)(e), which provides,

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

In order to decide whether a reasonable assurance analysis before and after the break is material, the base period services must be determined to be those in "school year employment." See Torrey Jr. v. City of Stevens Point, UI Dec. Hearing No. 06002857WR (LIRC, April 27, 2007). In this case, since the claimant's services for the employer were not only in the base period but also before and after the summer recess for UWSP, whether the claimant performed services as a school year employee for the employer is a prerequisite to determine whether reasonable assurance was provided.

Thus, the issue before the commission is whether, as of weeks 26 and 33 through 35 of 2009, the employee was a school year employee who had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(e).

While the petition proposes a shifting burden of proof, the commission notes that it is the employer's burden to establish that the employee was a "school year employee" within the meaning of the above. See Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC September 3, 1999)(it is the employer's burden to establish disqualification under the reasonable assurance provisions).

Wisconsin Statute § 108.02(22m) defines a "school year employee" as:

"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.

In its brief, the petitioner referenced three decisions, claiming that the definition of "school year employee" has been unevenly applied at all levels of the Department of Workforce Development. While it characterized Schmidmayr v. City of Stevens Point, Hearing No. 07000418WR (February 28, 2007) and Biesterveld v. City of Stevens Point, Hearing No. 06002626WR (August 2, 2006) as LIRC decisions, they were not; they were appeal tribunal decisions that were not appealed to the commission and are not binding on the commission. The third decision cited, Torrey Jr. v. City of Stevens Point, UI Dec. Hearing No. 06002857WR (LIRC, April 27, 2007) was a commission decision which found that the "school year employee" issue was not ripe for resolution; the commission did not make a specific finding on the issue of whether the claimant was a "school year employee."

In determining whether an individual is a "school year employee", the commission does not limit its analysis to the final clause of the definition, "an employment contract which does not require the performance of services on a year-round basis." Instead, the commission finds the language "services to or on behalf of an educational institution" valuable based upon its analysis of the cases that have come before it and the development of these statutory provisions and their federal basis.(2)

In Suprenand v. Moraine Park Vocational Technical & Adult Education District, UI Dec. Hearing No. 02000535FL (LIRC September 19, 2002), the commission required more than just the quantitative analysis of the amount of work per calendar year, finding that an educational employee who worked 47 weeks of the year was "not a school year employee" because the employee's unemployment was not tied to any customary vacation or between terms period, she was not restricted to working during the school year and was not off work because of the employer's summer, holiday or other customary break period.

In Wabnitz v. Oshkosh Public School, UI Dec. Hearing No. 03404679AP (LIRC July 20, 2004), the commission used the same approach, finding that the claimant was not a "school year employee" because:

the employee's services were not tied to the school district in an educational capacity (i.e. the services of officiating of adult basketball and adult softball games were for the employer's adult recreation department) and

those services were not tied "timing wise" to the school year.

In the case similar to the one currently before the commission, Higgins v. Milwaukee Public Schools, UI Dec. Hearing No. 07604581MW (LIRC November 30, 2007), the commission refused to "split up" work into categories of "school year employment" and "not school year employment," where the employer did not negotiate separate contracts connecting certain positions to certain duties to the school year. It further found that all of the employee's work was not as a "school year employee" where it was performed in a capacity of "other than an instructional, research or principal administrative capacity" and where the employee's unemployment was not directly attributed to school recess but due to budget cuts and contaminated sites.

In Engel v. Northcentral Technical College, UI Dec. Hearing No. 08201698EC (LIRC, October 31, 2008), the commission explained the "second factor" in determining whether an individual is a "school year employee" as

the "connection" or "integration" of the claimant's work with the employer's educational program or goals as it relates to the Wis. Stat. § 108.02(22m) language of providing "services to or on behalf of an educational institution."

The commission also noted in Engel that,

. . . given the claimant's services in the "other than" category, the language resulting in a denial of benefits should be strictly construed; Wis. Stat. § 108.04(17)(d) was an "opt in" provision from the federal public law. See Unemployment Insurance Program Letter No. 43-93 (UIPL 4-87), issued April 23, 1993. (Emphasis added).

The commission found in Engel that the services were not performed as a school year employee where, although the claimant worked 47 weeks per year and some of her services were connected with the employer's educational goals, some services were provided to the employer's community partnership programs and were unrelated to the employer's educational goals.

In this case, the employee's services as a bus driver for the City of Stevens Point did involve some services on behalf of the UWSP; however, those services were not exclusive, even the university routes allowed non students, and the driving services were "comingled" with regular year round municipal bus driving. Given the "strict" construction necessitated by the fact that the services are performed in an "other than capacity," the commission finds that the services were not performed as a "school year employee."

The commission therefore finds that the employee was not a "school year employee" within the meaning of Wis. Stat. § 108.22(22m) and, thus, the reasonable assurance provisions found at Wis. Stat. § 108.04(17)(e) do not apply to affect his eligibility for benefits.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the wages earned by the employee with the employer shall be included in the computation for benefits for weeks 26 and 33 through 35 of 2009.

Dated and mailed June 10, 2010
schmimi : 150 : ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

cc: Attorney Christopher Toner


Appealed to Circuit Court.  Affirmed, February 28, 2011.   [Summary of Circuit Court decision]

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Footnotes:

(1)( Back ) Additional bidding occurs upon resignation, termination, promotion transfer or death of a driver or when there is an extended illness or leave of absence (four or more consecutive weeks) or upon a new schedule or change in schedule of greater than 30 minutes.

(2)( Back ) This additional factor analysis also has support in Farrell v. LIRC and Marathon County Handicapped Children's Education Board, 147 Wis.2d 476; 433 N.W.2d 269 (Ct. App. 1988), where the court had to determine the applicability of Wis. Stat. 108.04(17)(b); and analyzed parallel language of "services to or on behalf of."

 


uploaded 2010/06/11