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


SANDRA L SCHWAHN, et al, Employe

COOP EDUCATIONAL SERVICE AGENCY #11, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96201021NRG


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, during weeks 19 through 37 of 1996, the employes are eligible or ineligible for benefits based upon any wages paid for work performed for the employer as indicated in the appeal tribunal decision. Recovery of the overpaid benefits paid to Mary Dontelle and Kristine Squier in week 20 of 1996 in the amount of $87.00 and for week 19 of 1996 in the amount of $272.00, respectively, is waived and they are not required to repay the department, nor will the overpaid benefits be recovered by any other means. There is no overpayment for Melva Buck and Elaine Phelps.

Dated and mailed: March 28, 1997
schwasa.usd : 135 : 1 ET 481

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The employes contend that they are not school year employes within the meaning of section 108.02 (22m), Stats., since no contract between them and Coop Educational Service Agency (CESA) No. 11 exists. The employes explain that both implied and expressed contracts require the element of mutual meeting of the minds and of intention to contract. However, the commission believes this element has been established in this case.

Throughout the 1995-1996 school year the employes provided services to CESA 11 under an implicit employment contract consisting of agreed upon terms and conditions of employment. Every day, throughout the school year, each employe reported to work, performed such services, and in exchange received an agreed upon wage for such services. This agreement between the employe and CESA 11 is an employment contract within the meaning of section 108.02 (22m), Stats. and consequently, the employe's are "school year employes" under that section.

The commission is aware of the Mary Ashleson, et al v. LIRC, Circuit Court decision no. 96-CV-251, which held that these same employes were not school year employes within the meaning of section 108.02 (22m), Stats., for a previous school year. The commission, however, believes the facts in this case are sufficiently different and do not serve to alter the commission's conclusion that the employes are school year employes and that consequently the reasonable assurance provisions of sec. 108.04 (17), Stats, apply to them.

Because the appeal tribunal decision discusses the application of reasonable assurance law to the numerous named employes in careful detail, the commission finds no need to comment further on the findings or conclusions of law except to note that it adopts them as its own.

cc: ATTORNEY STEPHEN L WELD
WELD RILEY PRENN & RICCI

ALAN D MANSON
NORTHWEST UNITED EDUCATORS

ATTORNEY MELISSA CHERNEY
WI EDUCATION ASSOCIATION COUNCIL


Appealed to Circuit Court.  The appeal was voluntarily dismissed by Plaintiff-Employes following the issuance of a decision of the Court of Appeals which reversed the Mary Ashleson Circuit Court decision referred to above;  see, Ashleson v. LIRC, 216 Wis.2d 23, 573 N.W.2d 554 (Ct.App. 1997).

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