FREDM. BURG v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT and BROOKDALE COMMUNITY COLLEGE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4755-14T4
FRED M. BURG,

        Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR
AND WORKFORCE DEVELOPMENT
and BROOKDALE COMMUNITY
COLLEGE,

     Respondents.
_________________________________

              Submitted December 21, 2017 – Decided March 1, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from the Board of Review, Department
              of Labor and Workforce Development, Docket No.
              373,834.

              Fred M. Burg, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent Board of Review
              (Melissa Dutton Schaffer, Assistant Attorney
              General, of counsel; Alan C. Stephens, Deputy
              Attorney General, on the brief).

              Cleary Giacobbe Alfieri and Jacobs, LLC,
              attorneys for respondent Brookdale Community
              College, join in the brief of respondent Board
              of Review.
PER CURIAM

      Appellant, Fred M. Burg, appeals from three final agency

decisions issued on May 4, 2015, by respondent the Board of Review,

(Board), Department of Labor (DOL).           The first decision, docket

number   373,834,   determined      that   appellant   was      ineligible   for

unemployment benefits for four periods in 2011 and 2012, and found

him   ineligible    for   federal    benefits   that     were    available    to

qualified recipients under the Emergency Unemployment Compensation

Act of 2008 (EUCA), Pub. L. No. 110-252, §§ 4001-07, Title IV, 
122 Stat. 2323, 2353-57 (2008).           The second determination, docket

number   405,317,    found   appellant      ineligible    for     unemployment

benefits for approximately four weeks in the summer of 2012, and

liable for a refund of $280, based upon assurances made by his

employer, respondent Brookdale Community College (Brookdale), that

appellant would be returning to work in the fall of that year.

The third decision, docket number 435,339, found appellant liable

for a refund of $156 for benefits he received for one week in

January 2012, during a period he was ineligible to receive them.

      On appeal, appellant contends that the demand for refunds for

benefits he received for one week in January 2012 was incorrect

and that he was entitled to a refund of $456 for three weeks of

benefits in September 2012, which the Board found he was eligible


                                      2                                A-4755-14T4
to receive.     He also argues that the DOL's failure "to file on

[his] behalf for . . . benefits under the [EUCA] was incorrect

[and he] should be reimbursed."        We find these contentions to be

without merit.    We affirm each of the Board's decisions.

     Appellant was a part-time, adjunct professor at Brookdale

since 2005.      He accepted offers to teach in advance of each

semester during the preceding semester.        According to appellant,

he has taught each consecutive semester since 2005 except for one

semester in 2007.

     Appellant initially filed for unemployment benefits in 2009

as he was not teaching during the summer.         On July 27, 2009, a

deputy director notified appellant that he was ineligible because

he was "claiming benefits during a period between academic terms,

between    successive   academic   years"   and   he   had   "reasonable

assurance" that he would be providing the same services in the

fall.     Appellant appealed that determination and after a hearing

before the Appeal Tribunal, the determination was reversed because

it was not based upon his employment with Brookdale but with

another part-time employer.        Accordingly, he was approved for

benefits for the period between May 24 and October 10, 2009.

According to the Appeal Tribunal, the last date appellant received




                                   3                             A-4755-14T4
benefits for his claim was "May 22, 2010,1 because the year had

ended and [at that time he] had a balance left . . . of $1826[.]"

      Appellant did not file a new or transitional claim until

December 18, 2011, when he filed based upon his not teaching during

Brookdale's winter break.    He also sought to "pre-date" another

claim for the benefit period he missed.2   A deputy director denied

the claims after he determined: (1) that appellant was not eligible

for benefits from December 18 because he had "reasonable assurance"

of returning to work after an academic break,3 and (2) he was also

ineligible from May 23, 2010 through December 17, 2011 because he

failed to report.   Appellant appealed those determinations, which

were docketed as number 373,834, arguing that he did not have

"reasonable assurance" of returning to Brookdale in the spring

semester, and that he was eligible for EUCA benefits from May 23,

2010 to December 17, 2011.

      After a hearing, the Appeal Tribunal found: (1) appellant was

ineligible for benefits for the period starting December 18, 2011

through January 14, 2012, because he was not working during the


1
    We have not been supplied with any documents explaining why
appellant continued to receive benefits after the October 2009
date.
2
    Copies of these claims were not provided to us.
3
   We glean these facts from the record, as a copy of the deputy
director's denial of this claim was not provided to us.

                                 4                          A-4755-14T4
college's "customary holiday period and had reasonable assurance

of recall during the next academic period or term;" (2) that he

failed to report from May 23, 2010 through December 17, 2011; and

(3) that appellant was eligible for benefits from December 18,

2011 through July 21, 2012, as he was eligible for work.

     The Board agreed with the Appeal Tribunal's determination

about appellant's failure to report in accordance with N.J.A.C.

12:17-4.2(a),   from   May    23,   2010   through   December   17,     2011.

However, it modified the Appeal Tribunal's decision as to the

period of ineligibility, so that it found appellant was ineligible

for benefits during the period of December 25, 2011 through January

21, 2012, pursuant to 
N.J.S.A. 43:21-4(g)(3).            The Board also

found that although appellant was eligible for benefits from

December 18, 2011, through December 24, 2011, "since his earnings

exceeded his partial weekly benefit rate, the week [was] not a

compensable week[.]"         As a result, the Board concluded that

appellant could "only be held not ineligible for benefits pursuant

to 
N.J.S.A. 43:21-4(c), from January 22, 2012 through July 14,

2012, as he was available for work."

     In accordance with the Board's decision, the DOL demanded a

refund of $156 from appellant for the week ending January 21,

2012, and $736 for the weeks ending August 25, 2012, and September



                                     5                                A-4755-14T4
15 through September 29, 2012.              Appellant made those payments on

December 11, 2012, without prejudice.

       Appellant filed an appeal with us from the Board's final

decision.    In response to a motion filed by the Board, we remanded

the    matter     to   the   Board   in   October     2013   without      retaining

jurisdiction. Prior to filing his appeal, appellant filed separate

appeals from the DOL's refund demands.                 Those appeals remained

pending until they were considered by the Appeal Tribunal, and

then   by   the    Board,    along   with     the   appeal   from   the    original

ineligibility determinations that we remanded.

       On remand, the Board vacated its prior decision and remanded

the matter to the Appeal Tribunal to be heard in conjunction with

appellant's appeals from the refund requests.                The Appeal Tribunal

conducted a telephonic hearing as to all three matters on April

7, 2015. The next day it issued three written decisions addressing

each of appellant's appeals.

       Turning first to the determination of his ineligibility under

docket number 373,834, the Appeal Tribunal found that for the

purposes of appellant's claim, his last day of work at Brookdale

was December 21, 2011, "when the fall session ended."                      At that

time, appellant expected to return to work on January 18, 2012

when the new semester began because in December 2012 he received

and accepted an offer to teach the following semester.

                                          6                                 A-4755-14T4
     The Appeal Tribunal then reviewed appellant's 2009 claim that

last paid appellant benefits for the week ending May 22, 2010, the

end of the benefit year, at a weekly benefit amount of $584, which

left him with a remaining balance of $1826 of his then maximum

benefit amount of $15,184.         The Appeal Tribunal noted, "had

[appellant] opened a transitional claim as of [May 23, 2010], he

would have been eligible for a valid claim with a weekly benefit

rate of $377[] and a maximum benefit amount of [$9802]."      It found

that appellant did not file a new claim at that time because he

mistakenly believed that "he may be eligible for an extension on

his 2009 claim under the [EUCA]." Although it found that appellant

visited his local unemployment office, he chose not to wait on the

long lines and left without ever discussing whether he was eligible

for EUCA benefits or if he needed to file a new claim.      He did not

file a claim until December 18, 2011, "establishing a weekly

benefit rate of $280[], a partial weekly benefit rate of $336[]

and a maximum benefit amount of [$7280]."      And, since he made that

claim appellant was "available and actively seeking work."           For

the week ending December 24, 2011, appellant earned $360.

     Turning to the applicable law, the Appeal Tribunal relied on

and quoted from 
N.J.S.A. 43:21-4(g)(1) to (4), which addresses the

ineligibility   of   instructors   at   educational   institutions   for

benefits for periods between academic terms where the instructor

                                   7                            A-4755-14T4
had   "a   contract   or   a   reasonable   assurance"   of   returning    in

successive academic years or terms.         
N.J.S.A. 43:21-4(g)(1).       The

statute also addresses an individual's ineligibility for holiday

and vacation periods where he or she works "immediately before

such vacation period or holiday recess, and there is a reasonable

assurance that [the] individual will perform such services in the

period immediately following such period or holiday recess[.]"


N.J.S.A. 43:21-4(g)(3).        Based on these provisions, it concluded

that even though appellant did not have a written contract for the

spring 2012 semester, he had received a letter offering him a

position as he had in the past, and was therefore ineligible for

benefits during the intersession because he "had a reasonable

assurance of employment."

      The Appeal Tribunal then turned to appellant's claim that he

should have been eligible for EUCA benefits and decided to address

the issue even though there had been no determination made by the

Deputy Director as to appellant's eligibility for those benefits.

It reviewed the eligibility requirements under the EUCA and noted

that a claimant is ineligible for those benefits if he or she did

not exhaust a claim for benefits made after 2006 or was "eligible

for any regular unemployment benefits in New Jersey or any other

state."    Applying these provisions, the Appeal Tribunal concluded

appellant "would have been eligible for a regular unemployment

                                      8                             A-4755-14T4
claim as of [May 23, 2010 and was t]herefore ineligible for EUC[A]

benefits on the claim dated [May 24, 2009]."

     Next, the Appeal Tribunal addressed the impact of appellant's

failure to report.     It quoted from N.J.A.C. 12:17-4.1 and 4.2,

which obligate a claimant to report in person in order to file an

initial claim and to continue reporting as directed by the Division

of Unemployment.   Applying those regulations, the Appeal Tribunal

determined that appellant's failure to file a claim because he was

supposedly "waiting for an extension on his [2009] claim" was not

a legitimate basis for failing to comply with             the reporting

regulations.     It concluded that appellant was ineligible for

benefits from May 23, 2010 through December 17, 2011.

     The Appeal Tribunal then quoted from 
N.J.S.A. 43:21-4(c)(1),

which imposes an obligation on claimants to demonstrate they are

unemployed and "actively seeking work" in order to be eligible for

benefits, if otherwise qualified.        It also noted 
N.J.S.A. 43:21-

19(m)(1) defines "unemployed" as being when a claimant is not

"engaged   in   full-time   work   and   with   respect   to   which   his

remuneration is less than his weekly benefit rate[.]"          Using that

definition, it found appellant was "available and actively seeking

work and had earnings of $360[] during the first week of [his]

claim" in December 2011.      It therefore found appellant eligible

for benefits from December 18, 2011 through December 24, 2011,

                                   9                              A-4755-14T4
"but since his earnings exceeded his partial weekly benefit rate

of $366[], the week [was] not a compensable week[.]"                    As a result,

it concluded that the only portion of the eligibility period

claimed by appellant that was valid was January 22, 2012 through

July 14, 2012, "as he was available [to] work."

     Addressing appellant's appeal under docket number 405,317,

the Appeal Tribunal issued a separate decision discussing his

claim that he was entitled to benefits during the last week of

August 2012 and three succeeding weeks in September 2012. Applying

the same law it did in its first decision, the Appeal Tribunal

concluded    again       that     appellant     had   reasonable      assurance      of

returning to work in Fall 2012 and should not have received

benefits    for    the     week   ending    August    25,    2012.      However,     it

determined that he was not obligated to refund his benefits for

the three weeks he received them in September.                   As a result, the

Appeal Tribunal directed that appellant refund only $280 of the

$736 demanded by the DOL, as he was not liable for the remaining

$456.

     In     its    last     decision,       the    Appeal     Tribunal      addressed

appellant's       claims    under    docket       number    435,339    in   which    he

challenged the DOL's demand for a refund of $156.                     Relying on its

finding that appellant was ineligible for benefits for the week



                                           10                                 A-4755-14T4
ending January 21, 2012, it concluded that he was liable for the

refund.

      Appellant filed appeals from the Appeal Tribunal's decisions

to the Board.       On May 4, 2015, the Board issued three decisions

in which it modified the Appeal Tribunal's findings, but agreed

with its conclusions.       In its decision addressing docket number

373,834, it found that the Appeal Tribunal erred in establishing

one of appellant's start dates for his period of ineligibility and

that it misstated the controlling statute. According to the Board,

"[s]ince the claimant last worked on December 21, 2011, before the

school closed for holiday recess, and returned to work on January

18, 2012, the period of ineligibility under reasonable assurance

must be from December 25, 2011 through January 21, 2012, pursuant

to    
N.J.S.A.      43:21-4(g)(3),    not   
N.J.S.A.   43:21-4(g)(1)       as

established, in error, [by] the Appeal Tribunal."

      The   Board    rejected   appellant's   contentions    that   he    was

eligible for unemployment because he was not guaranteed employment

each semester, as any offer was subject to enrollment and other

factors.    The Board found that the contingency did not diminish

the reasonable assurance finding, and it found that the finding

was   "substantiated     [because    appellant]   returned   to   work   [on]

January 18, 2012."



                                     11                             A-4755-14T4
     The Board reached a similar conclusion about appellant's

contention that he should have been found eligible for EUCA

benefits even though he had not exhausted his benefits and had

failed to report or make a claim during the benefit year.             The

Board affirmed the Appeal Tribunal's conclusions as modified.           It

issued    two   additional   decisions   agreeing   with   the    Appeal

Tribunal's calculation of the amount appellant was required to

refund.   This appeal followed.

     Appellant argues three points on appeal: (1) the Board's

requirement that he refund $156 was based upon the Appeal Tribunal

identifying the wrong date for when appellant returned to work in

January 2012; (2) as he already refunded the originally demanded

$736, he is entitled to receive the $456 that the Appeal Tribunal

determined he should not have to refund;4 and (3) he was entitled

to EUCA benefits.    We disagree with these contentions.

     Our scope of review of an administrative agency's final

determination is narrowly limited and highly deferential.             "So

long as the Board's decision is supported by sufficient credible

evidence in the record and was neither 'arbitrary, capricious,

[nor] unreasonable,' it will be affirmed."      In re Y.L., 
437 N.J.


 4
   The Board does not dispute appellant's entitlement to these
funds and suggests that appellant should "petition the [DOL] for
reimbursement[.]"

                                  12                             A-4755-14T
4 Super. 409, 412 (App. Div. 2014) (alteration in original) (quoting

Brady v. Bd. of Review, 
152 N.J. 197, 210 (1997)).        Likewise, the

factual findings of the agency must stand unless they are not

supported by sufficient credible evidence.         See ibid.

       Applying our limited scope of review, we find appellant's

argument on appeal to be "without sufficient merit to warrant

discussion in a written opinion[.]"        R. 2:11-3(e)(1)(E).       We are

satisfied that the Board's decisions do not violate the state or

federal constitutions, are not contrary to express or implied

legislative policies, and are supported by substantial, credible

evidence in the record.       Brady, 
152 N.J. 210-11.         We therefore

find   no   basis   to   disturb   the   Board's   decision    and    affirm

substantially for the reasons expressed by the Board in its written

decisions.

       Affirmed.




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