COURT OF APPEALS DECISION DATED AND RELEASED February 15, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3381
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JEFFREY J. DROESSLER,
Plaintiff-Appellant,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION
and BENTON PUBLIC
SCHOOL,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Lafayette County:
WILLIAM D. JOHNSTON, Judge. Reversed
and remanded.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
PER
CURIAM. Jeffrey Droessler appeals from a judgment affirming a
decision of the Labor and Industry Review Commission that limited his
unemployment compensation benefits. The
issue on appeal is whether LIRC erroneously construed § 108.04(9)(b), Stats.
We conclude that it did and therefore reverse.
During the 1992-93
school year, Droessler taught and coached basketball for the Benton school
district, in an 85% of fulltime position.
In June 1993, the district offered Droessler a 62.5% of fulltime
position for the following year. As a
result, Droessler qualified for unemployment compensation because the offer of
substantially reduced hours and wages did not provide reasonable assurance of
similar teaching employment. See
§ 108.04(17)(a), Stats.; Wis. Adm. Code § ILHR 132.04(2).
On July 15, Droessler
received an offer to teach fulltime and coach basketball for the Scales Mound
school district in Illinois, for an annual salary of $20,740. He refused that offer. On August 3, he received and accepted
Benton's offer of a three-quarter position, for roughly the same salary he
would have earned working fulltime for Scales Mound. At that point, Droessler's unemployment compensation eligibility
undisputedly ended.
This proceeding began
when Droessler appealed the determination that he lost unemployment
compensation eligibility when he refused the Scales Mound offer, rather than
three weeks later after he accepted Benton's.
The department's hearing notice defined the issues on the appeal as
"whether the employee was erroneously paid unemployment benefits [after
July 11] that must be repaid to the department," and "whether an
employee of an educational institution ... has reasonable assurance of employment
during the next academic term," under § 108.04(17), Stats.
As noted, an educational
employee is ineligible for unemployment compensation during the summer recess
if he or she has a reasonable assurance of similar employment during the
following school year. Section
108.04(17)(a), Stats. However, under § 108.04(9)(b), Stats., entitled "Protection of
Labor Standards," "[b]enefits shall not be denied under this chapter
to any otherwise eligible individual for refusing to accept new work ... [i]f
the wages, hours (including arrangement and number) or other conditions of the
work offered are substantially less favorable to the individual than those
prevailing for similar work in the locality." All parties agree that the tests under each section are separate
and unrelated.
At the hearing,
Droessler appeared with an expert witness prepared to testify that the
conditions of the Scales Mound job were "substantially less
favorable" to Droessler, under § 108.04(9)(b), Stats.
However, the hearing examiner excluded all evidence on that issue. The sole issue addressed was whether the
Scales Mound job satisfied § 108.04(17)(a), Stats., by offering Droessler a reasonable assurance of work
similar to that he performed the year before.
The hearing examiner then denied the appeal on that basis.
On administrative review
of that decision, LIRC addressed Droessler's labor standards argument in the
following manner:
The
commission agrees that under § 108.04(9), Stats., the "Protection of
Labor Standards" provision, benefits cannot be denied under chapter 108
for work that meets a condition contained therein. However, the employee's objection to the offered work in this
case is not one of the listed conditions.
The employee objected to the offered work because of the distance from
his residence to the employer's workplace.
This is essentially an argument regarding excessive commuting
distance. Excessive commuting distance
is not a "condition" of offered work as defined in section
108.04(9)(b), Stats.
LIRC
then affirmed the hearing examiner's decision requiring repayment of
unemployment compensation benefits received after July 11. Droessler takes this appeal from the trial
court's order affirming LIRC's decision.
We review the
commission's decision, not the trial court's.
Keeler v. LIRC, 154 Wis.2d 626, 632, 453 N.W.2d 902, 904
(Ct. App. 1990). We are not bound by
the commission's legal conclusions, although we will give them due weight in
certain circumstances that are not applicable here. Nottelson v. DILHR, 94 Wis.2d 106, 114-15, 287
N.W.2d 763, 767 (1980).
The commission
erroneously construed § 108.04(9)(b), Stats. Under the commission's reasoning, the
individual's stated rationale for refusing the job determines the labor
standards issue. However, the statute
plainly requires that the commission examine the wages, hours and other
conditions of the employment, not the individual's stated motivation for refusing
it. Therefore, LIRC should have addressed
whether the conditions of the Scales Mound job were substantially less
favorable to Droessler than those prevailing for similar work in the locality,
not the specific reasons Droessler gave for refusing that job.[1] A rehearing is therefore necessary because
the hearing examiner denied Droessler the opportunity to present evidence on
that issue.
The respondents contend
that Droessler waived the labor standards issue by failing to provide notice
that he intended to raise it before the hearing. We disagree. The hearing
notice identified the issue as whether Droessler was "erroneously paid
unemployment benefits." That very
broad statement allowed Droessler to raise any issue under § 108.04, Stats., which is entitled
"Eligibility for Benefits."[2]
The respondents also
contend that Droessler waived the issue because he failed to make an offer of
proof when the hearing examiner excluded testimony from his expert witness. An offer of proof is required to preserve
evidentiary issues in judicial proceedings.
Section 901.03(1)(b), Stats. In unemployment compensation hearings
"[s]tatutory and common law rules of evidence and rules of procedure
applicable to courts of record are not controlling ...." Wis.
Adm. Code § ILHR 140.12(1).
Droessler refused a job
offer from Scales Mound that would have paid him 75% of the rate for a
comparable fulltime teaching job at Benton.
By our decision, he is entitled to introduce evidence and obtain a
decision on whether the Benton wages are those that prevail in the locality and
whether an offer at 75% of the Benton rate constitutes a "substantially
less favorable" wage condition under § 108.04(9), Stats.
Accordingly, we reverse the trial court's order and remand for an order
directing LIRC to conduct further proceedings consistent with this opinion.
By the Court.—Order
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Even if it were relevant, the commission's finding as to why Droessler refused the Scales Mound offer is not supported by the evidence. Droessler testified that it was both the lower pay and the commuting distance that caused him to refuse the job. Section 108.04(9)(b), Stats., expressly defines wages as a relevant condition of work. The commission gave no explanation why it considered only part of Droessler's explanation.
[2] Additionally, Wis. Adm. Code § ILHR 140.06(3) provides, "The administrative law judge may take testimony and render a decision on issues not listed on the notice of hearing if each party is so notified at the hearing and does not object." Even though there was no objection when Droessler raised the protection of labor standards issue, the hearing examiner failed to exercise his discretion under this section.