Opinion
No. 2111 C.D. 2012
05-13-2013
School Express, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, School Express, Inc. (Employer) asks whether the Unemployment Compensation Board of Review (Board) erred in granting unemployment compensation (UC) benefits to Coni McKim (Claimant). Employer argues the Board erred in determining Claimant was "able and available" for suitable work under Section 401(d)(1) of the Unemployment Compensation Law (Law) for the claim weeks at issue. Alternatively, Employer asserts the Board erred in determining Section 402.1 of the Law (relating to benefits based on service for educational institutions) did not bar Claimant's entitlement to UC benefits. Upon review, we affirm.
Act December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801(d)(1).
Section 402.1 was added by the Act of July 6, 1977, P.L. 41, as amended, 43 P.S. §802.1.
The Board adopted the following facts found by the referee. Employer is a for-profit corporation. It provides transportation for school students under contract with Lincoln Intermediate Unit #12 and some school districts.
Claimant provided services as a school van driver with Employer during the 2010-2011 academic year. Employer's policies and the van driver job description provide that intermittent, part-time employment is available to van drivers at 25 hours per week from September 1 until May 31, and at 10 hours per week from June 1 until August 31.
Claimant completed documents with Employer indicating she was available for work during the summer recess for the claim weeks at issue, June 18 through August 20, 2011. There was a reasonable expectation that Claimant would return to her regular duties for the 2011-2012 academic year.
After the 2010-2011 academic year, Claimant applied for UC benefits, which were initially granted. Employer appealed. A hearing ensued before a referee.
At the referee's hearing, Claimant, who appeared without counsel, testified on her own behalf. Employer, which appeared with counsel, presented the testimony of its general manager.
The hearing before the referee involved 13 claimants. Only the claim of Coni McKim is at issue in this appeal.
After the hearing, the referee issued a decision granting Claimant UC benefits. The referee determined Section 402.1 of the Law did not preclude an award of benefits, and Claimant was able and available for work for the claim weeks at issue pursuant to Section 401(d)(1) of the Law.
Employer appealed to the Board, which affirmed, adopting and incorporating the referee's findings and conclusions. Employer now petitions for review.
On appeal, Employer argues Claimant was not "able and available" for work during the claim weeks at issue, June 18 through August 20, 2011 because she was not realistically attached to the labor market during this period. Alternatively, Employer asserts Claimant should be deemed ineligible for UC benefits under Section 402.1 of the Law.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217 (Pa. Cmwlth. 2012).
At the outset, we note, in UC proceedings, the Board is the fact-finder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Lee v. Unemployment Comp. Bd. of Review, 33 A.3d 717 (Pa. Cmwlth. 2011). In making these determinations, the Board may accept or reject the testimony of any witness, in whole or in part. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013). The Board's findings are conclusive and binding on appeal if the record, when viewed as a whole, contains substantial evidence to support those findings. Lee.
Further, it is irrelevant whether the record contains evidence that would support contrary findings. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). In determining whether substantial evidence exists, we view the record in the light most favorable to the party that prevailed before the Board, and give that party the benefit of all reasonable inferences that can be drawn from the evidence. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603 (Pa. Cmwlth. 2011).
Here, Employer did not specifically challenge any of the Board's findings in either its petition for review or its brief to this Court. As a result, the Board's findings are conclusive on appeal. See Campbell v. Unemployment Comp. Bd. of Review, 694 A.2d 1167 (Pa. Cmwlth. 1997) (holding unchallenged findings are conclusive on appeal).
Relying on Nicely v. Unemployment Compensation Board of Review, 403 A.2d 230 (Pa. Cmwlth. 1979), and GTE Products Corp. v. Unemployment Compensation Board of Review, 596 A.2d 1172 (Pa. Cmwlth. 1991), Employer first argues the Board erred in determining Claimant was able and available for work under Section 401(d)(1) of the Law. Employer contends Claimant understood when she took her van driver job that she would have few, if any, hours over the summer, and that she would be working regularly again in the fall. Further, there was no evidence presented that Claimant looked for other work. Employer also maintains Claimant essentially admitted at the referee's hearing that she applies for UC benefits during every school break despite knowing she will be working again when school resumes. Thus, Employer argues, Claimant should not be deemed "realistically attached to the labor market" and, therefore, not able and available for work within the meaning of Section 401(d)(1) of the Law.
Section 401(d)(1) of the Law states, in part, "[c]ompensation shall be payable to any employe who is or becomes unemployed and who ... [i]s able to work and available for suitable work." A claimant bears the burden of proving her availability for suitable work. Rohde v. Unemployment Comp. Bd. of Review, 28 A.3d 237 (Pa. Cmwlth. 2011).
An unemployed worker who registers for unemployment is presumed to be able and available for work. Id. (citing Penn Hills Sch. Dist. v. Unemployment Comp. Bd. of Review, 496 Pa. 620, 437 A.2d 1213 (1982)). Nevertheless, to be available for work, a claimant must be ready and able to accept employment, and be actually and currently attached to the labor force. Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600 (Pa. Cmwlth. 2006). A claimant is attached to the labor force as long as she is able to do some type of work and there is a reasonable opportunity for securing such work in the vicinity of her residence. Wilder & Miller, P.C. v. Unemployment Comp. Bd. of Review, 525 A.2d 852 (Pa. Cmwlth. 1987).
"Generally, the determination of whether a claimant is available for work as required by Section 401(d)(1) of the Law is a question of fact for the Board ... which ... (this) Court would be bound to affirm if the Board's resolution of that factual issue is supported by the evidence." Craig v. Unemployment Comp. Bd. of Review, 442 A.2d 400, 401 (Pa. Cmwlth. 1982) (quoting Goodwin v. Unemployment Comp. Bd. of Review, 378 A.2d 1308, 1310 (Pa. Cmwlth. 1977)) (emphasis added); see also Penn Hills Sch. Dist., 496 Pa. at 630, 437 A.2d at 1218 ("If the Board's finding of availability is supported by substantial evidence, it is binding on the appellate courts.")
Here, the Board found Claimant completed documents with Employer indicating she was available for work during the claim weeks at issue. Referee's Decision, 7/3/12, Finding of Fact (F.F.) No. 5. Further, in his opinion, which the Board adopted, the referee stated:
Here, there was no evidence presented that [C]laimant had any restrictions on [her] ability to work during the claim weeks at issue. Moreover, the job description provided by [E]mployer establishes that [C]laimant was connected to the labor market between the 2010-2011, and the 2011-2012, academic years as it provides that there is 10 hours of work per week available to van drivers during that period. [C]laimant specifically indicated to [E]mployer that [she] was available to work during the summer work schedule. Based on the above, [C]laimant has established that [she] is able to perform and available for suitable work during the claim weeks at issue and benefits will be allowed under Section 401(d)(1) of the Law.Referee's Dec. at 2.
The record supports the determinations that Claimant was able and available for work during the claim weeks at issue here, between June and August 2011. See Reproduced Record (R.R.) at 27a, 28a-29a, 36a. As a result, we cannot, nor will we, disturb the Board's supported finding that Claimant was able and available for work. See Penn Hills Sch. Dist.
Further, this not a case like Nicely in which a referee found the claimant, a school crossing guard employed by a municipality, was not able and available for work during a summer recess where the claimant expected and intended to return to work when the school year began. In affirming the award of UC benefits there, we stated "the law is clear that a person unemployed because of a pre-scheduled vacation, such as during a summer recess, is not truly able and available for work and is, therefore, ineligible for [UC] benefits." Nicely, 403 A.2d at 231 (citation omitted).
Here, unlike in Nicely, the record reveals Claimant remained able and available to provide van driver services for Employer during the summer months, R.R. at 36a, and Employer's policies and the van driver job description provide that employment is available, at a reduced schedule, over the summer months. Certified Record, Referee's Hearing, 6/19/12, Employer's Exs. 1, 2.
We also reject Employer's reliance on our decision in GTE Products. There, a claimant sought benefits for a four-week period in which her employer ceased production for its annual summer shutdown. The employer encouraged its employees to take vacations during the summer shutdown; however, it permitted vacations at other times if the employee was available for work during the shutdown period. The claimant used all her vacation time before the shutdown. Rather than signing up for work during the shutdown period, she filed for UC benefits. Based on the Board's supported findings that the claimant did not sign up for work during the summer shutdown despite the fact that work was available, we held the employer rebutted the presumption that the claimant was available for work. Additionally, we explained the claimant knew she would return to work after the summer shutdown and did, in fact, return to work for the employer. In so doing, we analogized the case to a school employee case in which we denied UC benefits to certain non-academic university employees who were laid off for the summer because of a decrease in the student body, but reasonably expected and intended to return to work the next school term.
Here, in contrast to GTE Products, the Board determined Claimant specifically indicated to Employer that she was available for work during the summer work schedule offered by Employer. Referee's Dec. at 2. The Board further determined "[t]here was no evidence presented that [C]laimant had any restrictions on [her] ability to work during the weeks at issue." Id. Thus, the Board's supported determinations reveal Claimant was able and available for work with Employer during the summer months. See Hamot Med. Ctr. v. Unemployment Comp. Bd. of Review, 645 A.2d 466 (Pa. Cmwlth. 1994) (declining to apply GTE Products where claimants, who worked as consultants in schools, sought benefits over summer even though they were contracted to provide services next school year where employer did not rebut presumption that claimants were able and available for work; Section 402.1 of the Law, which bars benefits to school employees over summer, did not apply where employer was a medical center rather than a school board).
Alternatively, Employer argues Section 402.1 of the Law bars an award of UC benefits here. It asserts that provision excludes from eligibility those employees who perform services for educational institutions and who seek benefits during the weeks between successive academic years where they receive reasonable assurance they will be employed in the next academic year. Here, Employer maintains, its van drivers "function in exactly the same way as school employees; they essentially would be school employees but for the fact that the school district contracts out its transportation services." Pet'r's Br. at 10. Thus, it argues, Claimant's services should be deemed "services performed for an educational institution" under Section 402.1, rendering her ineligible for UC benefits.
Section 402.1 of the Law states, as pertinent (with emphasis added):
Benefits based on service for educational institutions pursuant to Article X, XI or XII shall as hereinafter provided be payable in the same amount, on the same terms and subject to the same conditions as outlined in section 404(g); except that:
(1) 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 two successive academic years, or during a similar period between two regular terms whether or not successive or during a period of paid sabbatical leave provided for in the individual's contract, 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.
43 P.S. §802.1(1), (2), (4).(2) With respect to services performed after October 31, 1983, in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms.
* * * *
(4) With respect to weeks of unemployment beginning after January 1, 1979, benefits shall be denied to an individual who performed services in or near an educational institution while in the employ of an educational service agency for any week which commences during a period described in clauses (1), (2) and (3) if such individual performs any services described in clause (1) or (2) in the first of such periods, as specified in the applicable clause, and there is a contract or a reasonable assurance, as applicable in the appropriate clause, that such individual will perform such services in the second of such periods, as applicable in the appropriate clause. For purposes of this clause the term "educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purposes of providing such services to one or more educational institutions. A political subdivision or an intermediate unit may establish and operate such an educational service agency. ...
"The intent of the General Assembly in passing Section 402.1 was to eliminate the payment of benefits to school employees during summer months and other regularly scheduled vacations, on the rationale that such employees are able to anticipate and prepare for these nonworking periods." Glassmire v. Unemployment Comp. Bd. of Review, 856 A.2d 269, 273 (Pa. Cmwlth. 2004).
By its express terms, Section 402.1 of the Law governs benefits based on service for educational institutions pursuant to Article X, relating to state employees, Article XI, relating to nonprofit organizations, and Article XII, relating to political subdivision employees. Employer here does not assert it qualifies as an "educational institution." See Juniata Cnty. Childcare & Dev. Servs., Inc. v. Unemployment Comp. Bd. of Review, 6 A.3d 1037, 1042 (Pa. Cmwlth. 2010) ("in order for [c]laimants to be ineligible for [UC] benefits, [e]mployer must prove ... that [c]laimants were employed by an educational institution ....") (Emphasis added.) Also, although Section 402.1(4) speaks to "educational services agencies," a specifically defined term, we previously held that a taxi company, which provided school bus services, did not qualify as an educational service agency. See Colonial Taxi Co. v. Unemployment Comp. Bd. of Review, 479 A.2d 96 (Pa. Cmwlth. 1984).
The term "educational institution" is not defined in the Law. Montgomery Cnty. Head Start v. Unemployment Comp. Bd. of Review, 938 A.2d 1137 (Pa. Cmwlth. 2007). In Juniata County Childcare & Development Services, Inc. v. Unemployment Compensation Board of Review, 6 A.3d 1037, 1042 (Pa. Cmwlth. 2010), we determined an entity qualified as an educational institution where it: operated a "head start program" (an early childhood program run through the United States Department of Health and Human Services); was a direct recipient of federal grants that funded the program, and the claimants included a teacher and three teacher's aides, in addition to bus drivers and riders and other personnel normally found at a school. See also Montgomery Cnty. Head Start.
Here, Employer's general manager testified Employer is a forprofit "school transportation contractor." Reproduced Record at 22a. In its brief, Employer makes no attempt to explain how it qualifies as an "educational institution" as contemplated by the Law, despite the fact that Employer bore the burden of proving it did, in fact, qualify as such an institution. Juniata Cnty. Childcare & Dev. Servs.
Here, Employer, a company that provides school transportation services, is a "for profit" entity. F.F. No. 1; R.R. at 22a. Thus, Claimant is an employee of a for-profit corporation that provides school transportation services, rather than an employee of an educational institution. As such, Section 402.1 is inapplicable.
In addition, even if Employer was an entity covered under Section 402.1, it is not clear that provision would bar Claimant's receipt of UC benefits over the summer months at issue here. Section 402.1 operates to disqualify school employees from receiving UC benefits during the summer and other term breaks. Dep't of Educ., Scotland Sch. for Veterans' Children v. Unemployment Comp. Bd. of Review, 578 A.2d 78 (Pa. Cmwlth. 1990). Teachers and other school employees not working during term breaks who can reasonably expect to return are not entitled to UC benefits. Id.
In Scotland School, the claimant, who worked as a houseparent at a residential school and performed services full-time during the regular school year, sought UC benefits for summer weeks she did not work. Over the summer, the claimant continued her duties in a more limited capacity. Her schedule consisted of full-time weeks with little or no work the following week. Upholding the Board's grant of benefits, we determined the evidence of regular (though not full-time) summer scheduling, supported the finding that the claimant was not an employee for the academic year, but rather was employed year-round, thereby "obviat[ing] any further discussion on the 'reasonable assurance' doctrine of Section 402.1(2)." Scotland School, 578 A.2d at 79. Thus, we concluded Section 402.1(2) did not bar an award of benefits.
The facts presented here are analogous to those presented in Scotland School. Specifically, the Board here determined work remained available to Claimant during the summer, albeit at a reduced schedule, rather than only during the academic year. F.F. No. 3, Referee's Dec. at 2. As a result, even if Employer were an entity covered by Section 402.1, that provision would not bar an award of UC benefits to Claimant here.
Based on the foregoing, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 13th day of May, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge