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Trimarchi v. Board of Review

July 1, 2009


On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, Docket No. 185,180.

Per curiam.


Submitted April 22, 2009

Before Judges Payne and Waugh.

Claimant, Michael Trimarchi, appeals from a final determination of the Board of Review that he was ineligible for unemployment benefits for the week of February 3, 2008 through February 9, 2008, because he did not timely submit a claim for that week. We affirm.

Trimarchi, a union member employed as a groundsman by Four Directions Electric for approximately eight years, last worked for the company on February 1, 2008. In accordance with union rules, he called his employer on a daily basis commencing on February 3, 2008, and was informed that no work was available. Lack of work in the months of February and March was a familiar situation to Trimarchi, who had made claims for unemployment benefits in five preceding years.

On February 11, 2008, Trimarchi made a claim for unemployment benefits by telephone. He was awarded such benefits for the weeks commencing on February 10, 2008 and February 17, 2008, but he was not awarded benefits for the week of February 3. Following denial of his claim for that week by a claims examiner on the ground that Trimarchi had not sought benefits during the week that his layoff commenced, Trimarchi appealed. A hearing was held by a member of the appeal tribunal, who reached the same conclusion as the claims examiner. Upon further appeal to the Board of Review, the appeal tribunal determination was affirmed.

N.J.A.C. 12:17-4.2, "Reporting to file an initial or reopened claim," provides:

(a) An individual shall telephone a Reemployment Call Center or contact the Division via an Internet application to file an initial claim for benefits, unless another method of filing is prescribed by the Division. The effective date of an initial claim for benefits is the Sunday of the week in which the claimant first reports to claim benefits. The effective date of the initial claim establishes the period of time during which wages may be used to determine the monetary eligibility.

Pursuant to that regulation, Trimarchi's benefits were properly commenced, effective February 10, 2008.

At the hearing, Trimarchi explained his delay in reporting his layoff by stating that he did not know, during the course of the week of February 3, 2008, whether work would become available, and that he was not told that he was laid off until February 11, 2008. Trimarchi stated further that, if he had worked for two days in the preceding week, the amount he thus earned would render him ineligible for unemployment benefits. Trimarchi additionally claimed that, on occasion, weekend work was available and for that reason he had delayed his claim in order to determine whether his employment would recommence then. However, Trimarchi could not explain why he did not seek benefits on Friday, February 8, 2008 when it should have been clear, even if work had existed on Saturday, that unemployment benefits would have been payable.

The appeal tribunal, affirmed by the Board of Review, found that Trimarchi's explanation for his delay did not constitute good cause for pre-dating his claim as required by N.J.A.C. 12:17-4.1(b), which provides:

(b) An individual who fails to report as directed will be ineligible for benefits unless, pursuant to a fact-finding hearing, it is determined that there is "good cause" for failing to comply. For the purpose of this subchapter, "good cause" means any situation which was substantial and prevented the claimant from reporting as required by the Division.

Our role in reviewing the decision of the Board of Review is limited to a determination "(1) whether the agency's action offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonable have been made on a showing of the ...

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