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


BONNIE L RADUENZ, Employe

RACINE UNIFIED SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00605222RC


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, the employe is eligible for benefits in weeks 24 through 29 of 2000, if she is otherwise qualified. She is ineligible for benefits in weeks 30 through 36 of 2000.

Dated and mailed September 15, 2000
raduebo.usd : 164 : 1  ET 481

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer explains the rationale for its displacement policy and elaborates upon the procedures for placing displaced teachers in new assignments. The employer indicates that the appeal tribunal confused the term "displacement" with the term "layoff" and argues that any teacher under contract has a reasonable expectation of continued employment up until the time that person receives a layoff notice. The commission does not find these arguments persuasive. No evidence was presented at the hearing with respect to the provisions of the employe's contract with the employer, and the commission is unable to conclude that the employe was contractually assured of a job. Regardless of whether the employer chooses to characterize the employe's status as a displacement or a layoff, for UI purposes she cannot be denied benefits between terms unless she was given reasonable assurance of similar work in the next academic year or term. Reasonable assurance requires actual notice to the employe that she will perform similar services in the next academic year. The employer's June 2 letter, which advised the employe she would be displaced from her current teaching assignment due to reduced staffing projections, did not satisfy this requirement. The employer did not assure the employe that she would be placed in a similar teaching position and, although the letter notified her of the general policy that displaced teachers not assigned through the posting process by July 15 would be assigned to a position held by a teacher with lesser length of service within her area of certification, this was not sufficient to provide such assurance. Indeed, when asked whether the recipient of such a letter could feel comfortable that she would be working in the fall, the employer conceded that this depended upon seniority and that it could not confirm whether there were any teachers within the employe's area of certification with less seniority than she. Finally, the commission notes the employe's testimony that she had many questions and doubts about her status for the fall, and that she attempted to contact the assistant superintendent, but her telephone calls were not returned. Under all of the circumstances, the commission agrees with the appeal tribunal that the employe did not have reasonable assurance prior to July 15, at which point she was notified that she would be transferred to another teaching position for the fall academic term. Accordingly, the appeal tribunal decision is affirmed.

NOTE: In its petition the employer requests that, if a reversal is not issued, the commission order a new hearing to consider all facts. However, the employer's opportunity to present evidence on its behalf was at the hearing before the administrative law judge and, absent any reason to believe that this opportunity was improperly limited or that the employer has obtained new evidence that was not available to it before the hearing, the commission sees no reason to order further hearing in this matter. Consequently, the employer's request for a new hearing is denied.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with result reached by the majority herein and I dissent. This is not a case involving a substitute teacher who has no contract, this case involves a regular teacher who was under contract to teach in the 2000-2001 year. The contract has a layoff procedure section which is 13 and a teacher assignment and transfer section which is 15. Under sections 15.6, 15.9 and 15.10 are the sections that deal with displaced teachers. The displaced teacher may first post for vcacanies. "In the event a displaced teacher is not assigned through the posting process by the 15th of July, the teacher shall be assigned to a position held by a teacher with a lesser length of service within his/her area(s) of certification." Section 13.1.4 on layoffs requires "The Human Resources Department will give thirty (30) days' notice to teachers who are to be laid off." The employe was never given a notice of layoff at any time, much less 30 days notice.

The contract also explains that the Board and Association recognize that it is important to consider the interests and aspirations of the teachers in assignments. The assignments will consider length of service, certification, experience, specialized competence when making the assignments. The Board is required to make assignments within a person's area(s) of certification. I believe those sections take care of the question about whether the employe will perform such services in the following year.

The employer in its petition for commission review reminds us of the state statute section 118.22 which states that contracts not issued by March 15 of each year automatically renew for another year unless nonrenewed. There is no testimony that the employe was nonrenewed. Since the employe had a contract for the 2000- 2001 school year, she had more than reasonable assurance, she had a contract. For these reasons, I would reverse and find reasonable assurance for the entire between terms period which starts with week 24.


______________________________________
Pamela I. Anderson, Commissioner


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