McCuen v. Commonwealth
McCuen v. Commonwealth
Opinion of the Court
Opinion by
Robert McCuen (claimant), a substitute school teacher, has appealed from an order of the Unemployment Compensation Board of Review (Board) denying him benefits for claim weeks within the summer
The employer involved in this case is the Moon Area School District (Moon School District), which first employed Mr. McCuen in October of 1980 as a part-time, substitute teacher. On June 12, 1981, the end of the 1980-81 school year, McCuen was furloughed by the Moon School District. Later in the summer of 1981 McCuen taught for about 6 weeks in a program conducted by another school district. When that program ended in August 1981, McCuen applied for and was granted unemployment benefits, which he continued to collect until sometime in February 1982.
On March 1, 1982, McCuen was recalled by the Moon School District to fill a 3-month assignment— until the end of that school year — -as a substitute for a teacher who had taken a maternity leave. When the 1981-82 school year ended on June 4,1982, McCuen was again furloughed by the Moon School District. The employer did, however, offer him a teaching position in a 4-week summer-school program it was going to conduct. McCuen accepted the offer, but taught only for about a week. When the summer-school program ended on July 12, 1972, McCuen filed a renewed claim for unemployment benefits pursuant to his original application. He proceeded to collect benefits for part of July and part of August, 1982.
On November 6, 1982, the Office of Employment Security (OES) issued a determination that, under the terms of Section 402.1(1) of the Law, McCuen was not eligible for the benefits he received during the summer of 1982. As for the checks the claimant received during that period, the OES determined that they were a non-fault overpayment. Both determinations were upheld by the referee’s decision and the Board’s affirmance.
Section 402.1(1) of the Law bars an instructional employee in an educational institution from receiving benefits for periods between successive academic years or terms, “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.” Thus, if the instant claimant had, at the end of 1981-82 school year or at some other point prior to his application for benefits, a “reasonable assurance” of being reemployed by the Moon School District as a substitute teacher in the 1982-83 school year, he would not have been eligible for unemployment benefits during the summer recess of 1982.
One of the factors to be considered in determining whether a teacher has a “reasonable assurance” of returning to work, is his employment history. Neshaminy School District v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 543, 426 A.2d 1245 (1981). We have also held that when an employer offers to put a teacher’s name on a list of callable substitutes, and the teacher accepts the offer, such circumstances constitute a reasonable assurance. Bitter v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 403, 425 A.2d 54 (1981). The same result follows when the employer puts the teacher’s name on a list of substitutes, and communicates that fact to the teacher. Bornstein; Neshaminy School District; Goralski.
In the instant case, the referee’s finding that Mc-Cuen had a reasonable assurance of returning to the Moon School District, as a substitute teacher in the 1982-83 school year, was based on a labor agreement
The focus of the claimant’s testimony seemed to be on the fact that the Moon School District took until August 25, 1982, to actually offer him a substitute teaching position in the 1982-83 school year, and that he had been given no offer of such a position prior to that date. This testimony, in our view, was no more than an assertion that he had not been guaranteed a position when the previous school year ended or prior to his application for benefits. Of course, as we have already pointed out, the lack of a guarantee would not have entitled the claimant to benefits. Bornstein; Hansen v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 440, 422 A.2d 707 (1980).
The claimant reads Bornstein as meaning that the placement of a substitute teacher on the substitute list for the school year in question, and the teacher’s awareness of that fact, are not sufficient to permit a finding of “reasonable assurance.” Further, according to the claimant, the Bornstein case means that a determination of “reasonable assurance” cannot be made unless the referee makes a finding as to the teacher’s relative position on the substitute list, and a,s to the effect of that rank on his chances of being recalled for substitute teaching. We must conclude, however, that the Bornstein opinion, upon being read closely, does not generate the gloss the instant claimant would give it. And, for us to so interpret the case would create a requirement not imposed by Neshaminy School District, Bitler, Hansen or Goralski — all of which addressed the significance of a teacher’s name being placed or carried on the substitute list for the year in question.
In the case at bar, the claimant, Mr. McCuen, had been on Moon School District’s substitute-teacher list for the 1982-83 school year since the end of the previous term. He was on that list by force of a binding labor agreement of which he was aware, and which entitled him to be recalled in the order of his seniority. The record also shows that he had been called as a substitute, by the Moon School District, in each of the
In cases of this type, the question of whether the teacher-claimant had a “reasonable assurance” of reemployment is one for the Board to decide, after examining all the relevant facts. Hansen; Goralshi. In our view, the evidence and findings in the instant matter are sufficient to establish that the claimant had a “reasonable assurance,” even without a finding as to his relative position on his employer’s substitute list.
For the reasons set forth in the opinion, we must affirm the Board’s order.
Order
And Now, the 11th day of January, 1985, the order of the Unemployment Compensation Board of Review, at Decision B-214516, is hereby affirmed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) .2897, as amended, 43 P.S. §802.1(1).
During the hearing, the referee also mentioned an alleged letter which, supposedly, was written about June 19, 1982, telling McCuen that he might be called as a permanent substitute in the upcoming school year. One of the assertions made by the claimant in the present appeal is that, since the alleged letter was never introduced at the hearing or made part of the record, the referee should not have considered it. However, we need not address this argument; for the referee made no finding whatsoever concerning such a letter, and it played no part in his decision.
If, in such circumstances, a teacher’s relative position on the substitute list was deemed to be a necessary consideration, by what orderly standard would the compensation authorities decide that some positions on the list presented an opportunity for reemployment and others did not?
In reaching this conclusion, we reject the claimant’s other assertion in this case: that the referee did not give him the requisite assistance during the hearing.
Reference
- Full Case Name
- Robert McCuen v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review
- Cited By
- 3 cases
- Status
- Published