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


WENDY K HELDKE, Employe

SCHOOL DISTRICT OF SHOREWOOD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98608106MW


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, during week 44 of 1998, the employe is ineligible for benefits based upon any wages paid for work performed for the employer. The employe is required to repay the sum of $60 to the Unemployment Reserve Fund. No waiver of overpayment of benefits is allowable.

Dated and mailed June 7, 1999
heldkwe : 164 : 5  ET 481

David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In her petition for review the employe argues that, according to a ruling by an administrative law judge in April of 1988, substitute teachers are eligible for benefits during any week of the regular school year in which contract teachers work at least one day. The employe argues that, therefore, the employer should be responsible for the two days of unemployment during week 44. The employe has not provided a copy of the decision in question, nor a complete citation to that decision, and the commission is unaware of the decision to which the employe refers. Moreover, the commission is not bound by appeal tribunal decisions and would not be required to abide by such a ruling, even if it exists. Contrary to the employe's assertions, an educational employe is ineligible for benefits for any week of total or partial unemployment which includes an established and customary vacation period or holiday recess, provided the employe performed services for the educational institution in the period immediately before the vacation period or holiday recess and there is reasonable assurance that she will perform services in the period immediate following the vacation period or recess. In this case, the employe performed services for the employer in the period immediately prior to teachers' convention and had reasonable assurance of performing such services immediately after teacher's convention. Thus, the only question remaining to decide is whether the teachers' convention can be considered an established and customary vacation period or holiday recess. The commission remanded this matter for further evidence on that issue and, based upon the evidence adduced at the remand hearing, concludes that at least one day of the two-day teachers' convention must be considered a customary holiday recess. Consequently, the employe is ineligible for benefits during the week in question. Accordingly, the appeal tribunal decision is affirmed.


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