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


PHILIP R MERKLE, Employe

MENOMINEE INDIAN SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401310AP


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 school district in this case has a relatively small, stable, full-time teaching staff. It has approximately 150 full-time teachers, and uses an on-call substitute teacher list of approximately ten teachers. The employe has been an on-call substitute teacher with this school district since August of 1997. His employment is not controlled by any union contract, or any other written contract with this school district.

The employe's base period wages relevant to this claim for unemployment insurance benefits were earned in the fourth quarter of 1997, and in the first through third quarters of 1998. In the 1997-1998 school year, the employe served as a short-term substitute teacher for the named school district only. During the spring 1998 term, he worked, according to his own testimony, "almost every day," and earned $75.00 per day. Department records indicate that the employe reported wages of $2,151.90 earned from this employer in the first quarter of 1998 (at $75 per day, this represents less than 29 days in the first quarter), and $3,340.00 in the second quarter (or almost 45 days).

In August of 1998, the school district sent the employe a letter, asking if he would be interested in remaining on the district's substitute teacher list. He answered in the affirmative. Because he was concerned about getting enough work during the 1998-1999 school year, the employe also placed his name on the substitute teacher list for the Shawano/Gresham school district (beginning on December 9, 1998), the Bonduel school district (beginning on February 23, 1999), the Oneida school district, and the Menominee tribal school. He performed work for the named school district and the Shawano/Gresham school district in both the fall and spring terms, and the Bonduel school district in the spring term only. The Oneida school district called him on at least one occasion regarding a possible substitute teaching assignment, but he declined because he was committed on that same date to another school district.

From January of 1999, the employe testified that he earned $3,100.00 working for this school district. Because his pay rate was increased from $75.00 per day to $95.00 per day in 1999, this represents almost 33 days of work in the first and second quarters of 1999. However, the employe also worked for other school districts during this period as an on-call, short-term substitute teacher. He estimates that in the 1998-1999 school year, he was without work from at least one of the schools districts upon whose substitute list he entered only three days per month.

The issue to be decided is whether the employe worked for an educational institution during the prior school year or regular term, and whether the employe had reasonable assurance of performing similar work in the upcoming year or term.

Wis. Stat. § 108.02(22m) defines "school year employe":

"'School year employe' means an employe of an educational institution or an educational service agency, or an employe of a government unit 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."

The employe worked in the 1997-1998 school year as an on-call, short-term substitute teacher for the employer, an educational institution. His services as a substitute teacher were not required on a year-round basis. The employe worked in the 1998-1999 school year, again as an on-call, short-term substitute teacher, for a variety of school districts. Again, his services were not required on a year- round basis. At the hearing in this matter, the employe initially argued that he was not a school year employe because his services for this school district were not performed under any written contract. He modified his position during the hearing to state that there was not a contract, "written or oral," with this school district. The law in Wisconsin holds that substitute teachers form an employment contract with their school district each day they accept substitute teaching work during the academic year. Barnett v. LIRC, 131 Wis. 2d 416 (Ct. App. 1986). In an unemployment insurance context, a written or oral contract is not required as a basis for analyzing whether a school year employe has "reasonable assurance" of future employment. Reasonable assurance is defined as:

"[A] written, verbal or implied agreement that the employe will perform services in the same capacity during the ensuing academic year or term. . . ."

H. R. Rep. No. 1745, 94th Cong. 2d Sess. (1976), reprinted in U. S. Code Cong. & Ad. New, 5997, 6036.

Wisconsin Statute § 108.04(17)(a)(1) provides in substance that a school year employe of an educational institution who provides services for or on behalf of such an institution 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 two successive academic years or two terms, if he or she performed such services in the first academic year or term and has reasonable assurance of performing such services for an educational institution in the second such academic year or term.

The employe contended that he did not have reasonable assurance of performing similar work in the 1999-2000 school term. He cites in support of this contention DILHR v. LIRC, 155 Wis. 2d 256, 456 N.W.2d 162 (Ct. App. 1990), indicating his understanding that the appellate court in that case ruled that mere placement on a substitute teaching list is not "reasonable assurance" for unemployment insurance purposes. His reading of the holding of DILHR v. LIRC is incorrect. In that case, the court held that a substitute teacher who taught full-time under a contract for the first semester of the prior year, and was assured full-time work in the second semester of that year, was not offered "reasonably similar employment" when a school district informed her that she would remain on the substitute teaching list for the following fall, but that the district did not anticipate more full- time work. Id. at 267-68. It was the comparison of the work the employe did in the prior year to the work she was "assured" in the following year, which dictated the court's holding. The employe is correct, however, in pointing out that, where the "terms, benefits and conditions [of employment] are markedly different," Id. at 268 (emphasis added), a place on the substitute teaching list in the following year is not "reasonably similar" employment. The commission must find, however, that the employe has not in fact received assurance from the employer that he will be placed on the substitute list. Accordingly, the commission does not even reach the analysis of the terms, benefits and conditions of employment.

It is undisputed that this employer's method of providing assurance of work is by sending a letter to substitutes such as the employe in August preceding the start of the school year. That is the first written or verbal notification that the employer will be utilizing the employe's services in the upcoming school year. Certainly, when such letter is sent assurance has been given. However, as of the date of the hearing, July 12, 1999, the employer only "anticipated" sending the letter. The two years of prior service performed by the employe for the employer are simply insufficient to constitute a long-standing well-established pattern of reemployment upon which to base a finding of reasonable assurance.

The commission therefore finds that the employe performed services in an instructional, research, or principal administrative capacity for an educational institution during an academic year or term, but that, as of week 23 of 1999, the employe did not have reasonable assurance of performing such services in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(a).

DECISION

The administrative law judge's decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 23 of 1999, if he is otherwise qualified.

Dated and mailed September 30, 1999
merklph.urr : 132 : 7 ET 481

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission reverses the appeal tribunal decision not based on any differing impression of witness credibility or demeanor. While placement on a substitute list can constitute reasonable assurance, until such placement is offered to the employe, reasonable assurance does not exist. Traditionally the commission sees such letters being issued to individuals at the end of the school year, not at the beginning of the next school year. Reasonable assurance does not exist until the employer offers the employe the opportunity to perform work in the upcoming year that is reasonably similar to work performed in the preceding year. No such assurance was given to the employe as of the date of the hearing.


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