Charatan v. Board of Review

• Citation: 490 A.2d 352,200 N.J.Super. 74
• Parties: , 24 Ed. Law Rep. 300 Harriet CHARATAN, et al., Appellants, v. BOARD OF REVIEW, etc. and Woodbridge Board of Education, Respondents.
• Decision Date: 27 March 1985
• Court: New Jersey Superior Court — Appellate Division

Page 74

200 N.J.Super. 74

490 A.2d 352, 24 Ed. Law Rep. 300

Harriet CHARATAN, et al., Appellants, v. BOARD OF REVIEW, etc. and Woodbridge Board of Education, Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 6, 1985.

Decided March 27, 1985.

George Canellis, Union, for appellants (Dwyer, Canellis & Bell, Union, attorneys; Christopher M. Howard, Union, on the brief).

Carl J. Palmisano, Woodbridge, for respondent, Woodbridge Board of Education (Palmisano & Goodman, Woodbridge, attorneys Carl J. Palmisano, Woodbridge, of counsel; Scott J. Moynihan, Woodbridge, on the brief).

Irwin I. Kimmelman, Atty. Gen., for respondent, Board of Review, Department of Labor submitted a Statement in Lieu of Brief (Michael S. Bokar, Deputy Atty. Gen., of counsel; Todd A. Wigder, Deputy Atty. Gen., on the statement).

Before Judges MATTHEWS, FURMAN and HAVEY.

The opinion of the court was delivered by

MATTHEWS, P.J.A.D.

Claimants, part-time supplemental instructors for the Woodbridge Board of Education during the 1982-83 academic year who had a one-year oral guarantee of employment, appeal from a final determination of the Board of Review which held them ineligible for unemployment benefits from June 20, 1983 through the end of the period between academic years. Claimants contend that the Board's finding that they had a reasonable assurance of employment in an instructional capacity during the 1983-84 academic year because the Woodbridge Board of Education had offered to place their names on a substitute teacher's roster was based on insufficient credible evidence in the record.

Claimants were employed by the Woodbridge Township Board of Education as supplemental teachers during the 1982-83 academic year. Each began in September 1982 and continued on an uninterrupted basis until June 1983. Although claimants did not have written contracts, they were appointed to their positions in August 1982 by means of a telephone call and they received a guarantee from the Board at that time that they would continue in the positions for the entire academic year.

As supplemental instructors, claimants taught children with learning disabilities in groups of three children or less for a maximum of 20 hours per week. Some of them taught five days per week for four hours a day whereas others taught four days per week for five hours a day. Claimants earned $11.50 an hour and were eligible to acquire tenure as teaching staff members. In fact, the majority of claimants were tenured employees of the Woodbridge Board of Education.

To be appointed as a supplemental instructor, a claimant was required to have a bachelor's degree and be state certified. Claimants were reimbursed for traveling expenses if required to go from one school to another and also received paid sick days. In addition, claimants were covered by the collective bargaining agreement between the Board and the Woodbridge Federation of Teachers. Claimants were not replaced by substitute teachers when absent from work.

By letter dated April 27, 1983, claimants were notified by the secretary of the Woodbridge Township Board of Education that the Board had decided not to rehire them as supplementary teachers for the 1983-84 school year. Subsequently, by certified letter dated June 24, 1983, the Board's deputy director of special services offered claimants the opportunity of having their names placed on the district's 1983-84 roster of substitute teachers.

According to the Board's Deputy Director of Special Services, the Woodbridge Township School District always had a need for substitute teachers. The Board was forced to advertise for substitute teachers and telephoned colleges soliciting the names of recent graduates who might be interested in substitute teaching. In fact, there were times when not enough substitutes were available and the Board was required to use "regular" teachers to cover classes.

Substitute teachers are not required to be state certified nor is it necessary for them to be college graduates. Sixty college credits suffice. Substitute teachers are primarily hired on a per diem, on-call basis. There are times, however, when substitutes are hired for long-term assignments. Substitutes earn $36 per day. After working for a period of 15 consecutive days, the salary is increased to $40 per day retroactive to the first day of the assignment. Substitutes are not entitled to sick leave benefits or reimbursement for traveling expenses.

Based on the foregoing evidence, the Appeal Tribunal found claimants ineligible for unemployment benefits from June 20, 1983 through the end of the period between academic years, pursuant to N.J.S.A. 43:21-4(g)(1). The Appeal Tribunal reasoned that claimants, as supplemental instructors, were not full-time teachers under annual contract. Thus, the Board's offer to place claimants' names on the roster of substitute teachers, where the evidence strongly supported the expectation that claimants would be called to serve in a substitute teaching capacity, constituted a reasonable assurance that they would perform services in an instructional capacity for an educational institution during the 1983-84 school year, thereby rendering them ineligible for unemployment benefits.

The Board of Review affirmed the Appeal Tribunal's determination on the basis of the record below.

Claimants contend that there is insufficient credible evidence in the record to support the finding of the Appeal Tribunal, subsequently affirmed by the Board of Review, that they were provided with a "reasonable assurance" of employment pursuant to N.J.S.A. 43:21-4(g)(1). That statute provides in pertinent part:

With respect to service performed after December 31, 1977, in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between 2 successive academic years, or during a similar period between two regular terms, whether or not successive, ... to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;

....

The burden is upon a claimant to establish the right to unemployment compensation benefits. Bastas v. Bd. of Review Dep't of Labor and Ind., 155 N.J.Super. 312, 315, 382 A.2d 923 (App.Div.1978). Thus, claimants must demonstrate that they did not have a reasonable assurance of employment for the 1983-1984 school year in an instructional capacity.

In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs. Zielenski v. Bd. of Rev., Div. of Emp. Sec., 85 N.J.Super. 46, 54, 203 A.2d 635 (App.Div.1964); Morgan v. Bd. of Review, Div. of Employ. Sec., 77 N.J.Super. 209, 213, 185 A.2d 870 (App.Div.1962). Where there is substantial credible evidence in the record as a whole to support the ruling, the decision of the Board must be upheld. In re application of Howard Savings Bk., 143 N.J.Super. 1, 10-11, 362 A.2d 592 (App.Div.1976).

N.J.S.A. 43:21-4(g)(1), which provides an exception to eligibility for unemployment compensation benefits, is tailored to meet the unique ten month term of educational employment. There is a predictable hiatus in the period during which actual work is performed, due to the summer vacation, and as long as the employment relationship continues, no unemployment compensation is to be paid. Denial of benefits to these persons "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." Davis v. Com., Unemployment Compensation Bd., 39 Pa.Cmwlth. 146, 394 A.2d 1320, 1321 (Cmwlth.Ct.1978). Accord, Sulat v. Board of Review, 176 N.J.Super. 584, 588, 424 A.2d 451 (App.Div.1980).

In Schoenfeld v. Board of Review, 163 N.J.Super. 584, 395 A.2d 528 (App.Div.1978), certif. den. 79 N.J. 492, 401 A.2d 247 (1979), claimant, a Title I teacher's aide, was denied special unemployment assistance benefits during a summer recess under a federal statute (26 U.S.C.A. § 3304) substantially similar to N.J.S.A. 43:21-4(g)(1) which barred such benefits where the employee worked for an institution in the prior academic year and had "a contract to perform services" in the upcoming year. Although claimant normally worked under a written contract, she was notified in the early spring that federal funds had been allocated for the position of teacher's aide, and there was an oral agreement that she would return in the fall, providing that nothing unforeseen happened. 163 N.J.Super. at 585-586, 395 A.2d 528. This court affirmed the denial of benefits, holding that the word "contract" in the statute could be interpreted to mean a reasonable expectation of employment for the next academic year. 163 N.J.Super. at 587-588, 395 A.2d 528.

N.J.S.A. 43:21-4(g)(1) has been the subject of two Appellate Division cases. In Patrick v. Board of Review, 171 N.J.Super. 424, 409 A.2d 819 (App.Div.1979), claimant was employed as a day-to-day substitute, claimant was paid on a per diem basis but for her long term services, compensation was based on a scale according to her years of experience as a teacher. Although claimant was not scheduled to return to Absecon as a long-term substitute for the 1978-79 school year, the court held that she failed to demonstrate that she did not have a "reasonable assurance of employment," since she was approved both by Absecon and Ocean City to be a day-to-day substitute for the 1978-79 school year. Thus, the court...