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DeChellis v. Board of Review

September 27, 2007


On appeal from the Board of Review, Department of Labor, Docket No. 120,159.

Per curiam.


Submitted September 17, 2007

Before Judges Parrillo and Graves.

Claimant Joanne DeChellis appeals from the final decision of the Board of Review (Board) dated September 29, 2006, affirming a determination by the Appeal Tribunal that she was ineligible for unemployment compensation benefits, pursuant to N.J.S.A. 43:21-4(g)(2), and liable, pursuant to N.J.S.A. 43:21-16(d), to refund the sum of $393 representing benefits she erroneously received. We affirm.

Claimant testified she was hired by the Lyndhurst Board of Education as a part-time lunch captain in September 2003. She testified that lunch food is delivered to the school because the school does not have a cafeteria, and she is responsible for serving school lunches to the students. Claimant usually works approximately four hours a day when school is in session, but she does not work during the summer recess because "school is closed and there [are] no lunches to be served." In September 2004 and 2005, claimant returned to work when school resumed.

Because she is a school employee, claimant is subject to N.J.A.C. 12:17-12.4(a)(1), which provides as follows:

(a) An employee of an educational institution shall be ineligible for benefits for any week that begins during the period between academic years or terms and during vacation periods and holiday recesses, if the employee has reasonable assurance of returning to work in any such capacity, during the succeeding academic year or term or after the vacation period or holiday recesses.

1. The term "reasonable assurance" of returning to work means a written, oral, or other implied agreement that the employee shall perform services in any such capacity during the next academic year, term, or remainder of a term. "Any such capacity" means the same or similar capacity and refers to the type of services provided, that is, a professional capacity as provided by N.J.S.A. 43:21-4(g)(1) or nonprofessional capacity as provided by N.J.S.A. 43:21-4(g)(2).

The Appeal Tribunal found that claimant "was employed as a lunch captain for . . . [an] educational institution from 09/03 through 06/21/06, when summer school closed for the summer recess," and that "claimant usually receives a letter after the Board of Education meets [at] the beginning of September offering her work for the new school year." The Appeal Tribunal determined claimant was not eligible for the unemployment compensation benefits she received for the weeks ending July 1, 2006, through July 15, 2006, because she had "an implied agreement" with her employer, "which constitute[s] reasonable assurance of employment under N.J.A.C. 12:17-12.4(a)(1)." On September 29, 2006, the Board affirmed the Appeal Tribunal's decision that claimant was ineligible for the benefits she received in the amount of $393.

The burden is upon a claimant to establish the right to unemployment compensation benefits. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997); Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964). In this case, the Board determined claimant failed to demonstrate that she did not have a reasonable assurance of employment during the 2006-2007 school year because her pattern of employment, which normally resulted in a lack of work during the summer recess, had not changed.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady, supra, 152 N.J. at 210. So long as an agency's decision is statutorily authorized and not otherwise defective because it is arbitrary or unreasonable, we must accord it a "strong presumption of reasonableness." City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). If we find sufficient credible evidence in the record to support the agency's decision, then we must affirm even though we may have reached a different result. Clowes v. Terminex Int'l, Inc., 109 N.J. 575, 588 (1988).

Based on our review of the record and the applicable law, we are satisfied that the Board's final decision is amply supported by substantial credible evidence, and it is neither unreasonable nor contrary to law. See Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) ("Denial of benefits . . . 'conforms with the Legislature's intent not to subsidize the vacation periods of those who know well in advance that they may be laid off for certain specified periods.'") (quoting Davis v. Commonwealth, Unemployment Comp. Bd. of Review, 394 A.2d 1320, 1321 (Pa. Commw. Ct. 1978)); Patrick v. Bd. of Review, 171 N.J. Super. 424, 425-26 (App. ...

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