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

In the matter of the
unemployment benefit claim of

RALPH L TEUTSCH, Employe

Involving the account of

KENOSHA PUBLIC SCHOOL, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 90-601568KN

The employe was the subject of an adverse Initial Determination issued February 13, 1990. The employe timely requested a hearing on the determination, which was held April 12, 1990 in Kenosha, Wisconsin, before Administrative Law Judge Charles Lund. On April 23, 1990, Administrative Law Judge Lund issued an Appeal Tribunal decision affirming the Initial Determination. The employe timely petitioned for Commission review of the adverse Appeal Tribunal Decision, and the matter now is ready for disposition.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe works as a substitute teacher for the employer, a public school district. On Monday, January 29, 1990, the employe refused a substitute teaching assignment for that day. The issue is whether the employe is eligible for unemployment benefits for that week (5 of 1990) notwithstanding his refusal of the offer of work. He is.

The employe has worked "off and on" as a substitute teacher for the employer since 1981. In week 4 of 1990, the employe worked January 22, January 23, January 25, and January 26. As of the end of work on Friday, January 26, the employer had not yet offered the employe the January 29 assignment. The employer offered the employe the January 29 assignment on January 29, at approximately 6:00 a.m. (customary procedure in the area of substitute teaching). The employe refused the assignment because a prospective employer to whom the employe had applied for work had instructed the employe to report for an employment examination on that date. The employe also worked for the employer on February 2 and 3 in week 5; the record indicates that the employe had advance notice of the February 2 and 3 assignments, but not the length of the notice.

The issue in this case is whether the employer was the employe's current employing unit when it offered the employe work Monday, January 29. If it was, then section 108.04(1)(a) of the Statutes is applicable to the offer of work. That statute renders an employe ineligible for benefits in any week in which the employe is called upon by his or her current employing unit to report for work, and the employe is unavailable for that work. If the employer was not the employe's current employing unit then section 108.04(8)(a), which renders an employe ineligible for benefits for refusing an offer of work without good cause, applies. For the following reasons, section 108.04(8)(a) applies and the employe is eligible for benefits in week 5 of 1990.

Resolution of this case is governed by Barnett v. LIRC, 131 Wis. 2d 416, 388 N.W.2d 652 (Ct. App. 1986). In Barnett, the court had before it the issue also present here: whether the school district is the current employing unit of a substitute teacher between assignments. The court answered in the negative. The court reasoned that a substitute teacher has no more than a sporadic and unpredictable employment relationship, unilaterally controlled by the employer. The substitute teacher has no contract with the employer, is paid on a daily basis, and has no reasonable assurance of continuous work. The court concluded that "current employing unit" refers to presently occurring employment, and not past or speculative future employment, and that a school district is the substitute teacher's current employing unit only on the days the employe actually substitute teaches. Such employment ends "when the school bell (rings)" because other than those days, a substitute teacher has no nexus or obligations to the school district. The employer here did not offer the employe the January 29 assignment, a one-day assignment, until the morning of January 29. Pursuant to Barnett, the employment relationship in this case ended when the employe completed his assignment on Friday, January 26. The commission therefore finds that, when the employer offered the employe work on Monday, January 29, 1990, the employer was not the employe's current employing unit within the meaning of section108.04(1)(a) of the Statutes.

Section 108.04(8)(a), as noted above, allows an employe to remain eligible for benefits notwithstanding the refusal of an offer of work, if the refusal was with good cause. The employe in this case refused the offer of work because of a previously schedule employment examination with a prospective employer. Few causes are better than this one, or more in keeping with the purposes of the Unemployment Compensation Law. The commission therefore finds that, in week 5 of 1990, the employe failed to accept an offer of suitable work, within the meaning of section 108.04(8)(a) of the Statutes, but that the failure was with good cause, within the meaning of that section.

The record indicates that the employe's only unavailability for work in week 5 was due to the employment examination the prospective employer had scheduled. As noted above, the employe worked for the employer later in week 5. The commission therefore finds also that the employe was not unable to work or unavailable for work in week 5 of 1990, within the meaning of section 108.04(8)(e) of the Statutes.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits in week 5 of 1990, if he is otherwise qualified.

Dated and mailed July 26, 1990
105 - CD1002 AA 110 SW 800

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

cc: JOHN A STENCIL
LOCAL UAW NO 72

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