Wis.LIRC UC Decision: Brookman, et al. (wks 12-13/89) - August 27, 1990 - ET 481 - School year employe, school year employment - week with day(s) off as 'week of unemployment'

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

BRUCE A BROOKMAN, et al., Employes

Involving the account of

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-603455 MWG

This case consolidates several initial determinations issued by Department deputies. In separate initial determinations, the deputies held that Bruce Brookman, Carol Houghton and Annie Canady worked in an instructional, research or principal administrative capacity for the employer, and found them ineligible for benefits based on work for the employer in weeks 12 and 13 of 1989. The employes appealed their respective initial determinations.

An initial determination issued to Henri Deutsch held that he claimed unemployment compensation benefits for week 13 of 1989, that week 13 fell within the employer's established and customary vacation period, but that the employe had not performed services for that employer in the period immediately before the vacation or there was no reasonable assurance that he would perform services after the vacation period. As a result, this initial determination allowed benefits. The employer appealed the initial determination issued to Deutsch.

At the hearing, it was agreed between the parties that the Appeal Tribunal would take up the issue of whether Henri Deutsch was eligible for unemployment benefits under sec. 108.04(17)(c), Stats., for both weeks 12 and 13 of 1989. The parties, however, recognized that his eligibility for benefits for week 12 of 1989 would still be dependent upon whether he had filed a claim for benefits for that week.

Because they all involved the same or similar facts with the same employer, all four cases were combined for the purposes of a group hearing before the Appeal Tribunal. The Appeal Tribunal concluded that week 12 was not a week of unemployment which occurred during an established and customary vacation period or holiday recess. As a result, the Appeal Tribunal held the employes were ineligible for unemployment benefits in week 13, but not week 12, under sec. 108.04(17)(c). The employer has filed a petition for Commission review.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employes were day-to-day substitute teachers for the employer, a public school district, during the fall and spring semester of the 1988-89 school year. The spring semester began on January 23, 1989 (week 4), and ended on June 16, 1989 (week 24).

The calendar week ending March 25 (week 12), was not a full school week. Regular teachers taught on March 20, 21, 22, but had conferences on March 23. Day-to-day substitute teachers, like the employes here, did not work for the employer on March 23, but work was available earlier in the week. Friday, March 24 was the first day of spring recess for the 1988-89 school year. Spring recess ended on April 1, 1989 (week 13). There were no classes and no work for substitute teachers during the spring recess. Classes resumed Monday, April 3, 1989 (week 14). The employes in this group case filed claims for benefits for one, or both, of weeks 12 and 13 of 1989.

The issue in this case is whether the employes are disqualified for unemployment benefits for weeks 12 and 13 of 1989 under sec. 108.04(17)(c), Stats., which provides:

"An employe of an educational institution or an employe of a government unit or nonprofit organization who provides services to or on behalf of an educational institution and who performs services as described in par. (a) or (b) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if such employe performed such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such employe will perform such services in the period immediately following such vacation period or holiday recess."

The last day of work before the 1989 spring recess for employes Brookman, Deutsch and Canady was March 17 (week 11). Employe Houghton's last day of work before the recess was March 21 (week 12). Following the spring recess, employes Brookman, Deutsch and Canady and Houghton either worked for the employer or were offered work by the employer on April 3 (week 14). Employe Canady was offered work on April 7 (week 14) but was unable to work on that day.

The duties the employes performed, both before and after the holiday recess, were instructional services for the employer, an educational institution. The employes remained registered for substitute teaching with the employer after the spring recess and the employer's system of offering substitute teaching opportunities did not change. Consequently, the employes had a reasonable assurance of performing instructional services for the employer in the period immediately following the spring recess. Indeed, as the record demonstrates, the employes all either worked or were offered work in weeks 11 and 14, the weeks immediately before and after the calendar weeks in which the spring recess, or part of it, fell.

The main point of contention in this case is whether week 12 of 1989, the week in which the 1989 spring recess began on Friday, March 24, was a "week of unemployment" which occurred during an established and customary vacation period or holiday recess under sec. 108.04(17)(c), Stats. "Week of unemployment," as used in that section has not been defined in the unemployment compensation statutes and it has not been judicially defined. "Week" is defined, by sec. 108.02(27), Stats., as a calendar week beginning on Sunday and ending on Saturday. Pursuant to sec. 108.02(15), Stats., the term "employment," subject to various exceptions, is essentially the performance of services for pay. Accordingly, unemployment is the absence, or lack, of services for pay. An individual may lack employment during only a portion of a calendar week. This is recognized in sec. 108.02(20), Stats., which provides that an employe is "partially unemployed" in any week for which he or she earns some wages and is eligible for some benefits under sec. 108.05(3), Stats. Section 108.02(25), Stats., provides that an employe is "totally unemployed" in any week for which he or she earns no wages. The commission therefore considers that a calendar week may be a "week of unemployment," as that term is used in sec. 108.04(17)(c), Stats., even though the period of such unemployment is less than an entire calendar week. Accordingly, the commission further considers that "any week of unemployment which occurs during an established and customary vacation period or holiday recess" in sec. 108.04(17)(c), Stats., means any calendar week in which some period of unemployment occurs during an established and customary vacation period or holiday recess.

As applied to the instant case, the commission's interpretation of the statute requires denial of unemployment compensation to all employes listed in the appendix for week 12 and 13 of 1989. While the commission is aware that the instant decision may be argued to conflict with certain past administrative decisions and at least one non-precedential circuit court decision, the commission considers that its present interpretation best comports with the underlying unemployment compensation policy of not subsidizing school employes' customary or agreed-to vacation periods. Moreover, the decision in this case follows the reasoning set out by the commission recently in Stacey J. Becker, et al. v. Milwaukee Public Schools, LIRC Hearing No. 88604031MWG (May 9, 1990) and its companion cases.

The commission therefore finds that the employes listed in the appendix are disqualified from receiving benefits for week 12 and 13 of 1989, by application of sec. 108.04(17)(c), Stats.

The commission further finds that Bruce Brookman was paid benefits for week 12 and Henri Deutsch was paid benefits for weeks 12 and 13 for which they were not eligible, within the meaning of sec. 108.03(1), Stats., and that, pursuant to sec. 108.22(8), Stats., they must repay to the Unemployment Reserve Fund, the sums, if any, listed in the attached appendix.

With respect to Annie Canady, the benefits for weeks 12 and 13 were withheld to pay a forfeiture imposed under sec. 108.04(11). Since Ms. Canady is ineligible for benefits in week 12 and 13, the amounts withheld cannot be applied to the forfeiture. Consequently, the amount restored to her forfeiture balance is $296.

DECISION

The decision of the Appeal Tribunal is reversed in part. The employes listed in the appendix are disqualified from receiving benefits for both weeks 12 and 13 of 1989, and they are required to repay to the Unemployment Compensation Reserve Fund the sums listed in the attached appendix. In addition, $296 is restored Annie Canady's forfeiture balance.

Dated and mailed August 27, 1990
101 CD8058 ET 481

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The commission's decision reversing, in part, the Appeal Tribunal decision is not based on any assessment of credibility differing from that of the Appeal Tribunal. Rather, the commission's partial reversal is based upon a different conclusion of law as to the construction and application of the statute. Consequently, consultation with the Appeal Tribunal under Transamerica Ins. Co. v. ILHR Department., 54 Wis. 2d 272 (1972) is not necessary.

cc:
SID HATCH
MILWAUKEE TEACHERS EDUCATION ASSOCIATION

[Group Appendix listing the employes and overpayment amounts omitted]

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