Opinion
C.A. No. 07A-01-002 JRJ.
Submitted: August 8, 2007.
Decided Decided: October 15, 2007, Date Corrected: October 16, 2007.
Upon Appeal of the Decision of the Unemployment Insurance Appeal Board, Decision — AFFIRMED.
Jeffery L. Corbin, Wilmington, DE, employee-appellant, pro se.
American Flag Inc., Townsend, DE, employer-appellee, pro se.
Marypage Bailey, Esquire, Dept. of Justice, Wilmington, DE, attorney for appellee Unemployment Insurance Appeal Board.
CORRECTED ORDER
I. INTRODUCTION
Plaintiff appeals the decision of the Unemployment Insurance Appeal Board ("Board") that he is ineligible for unemployment benefits. Plaintiff claims he is "unemployed" pursuant to 19 Del. C. § 3302(17). Because Plaintiff fails to establish that certain missed opportunities for work constitute "unemployment," the Court affirms the Board's decision.
II. BACKGROUND
Jeffrey L. Corbin was hired as a flagger on a part time, on call basis by American Flag Inc. ("American") on March 27, 2006. The President of American, Brandy Redrow, testified that American tried to call Corbin to work several times but Corbin either failed to answer his phone or was unable to get to work because of car problems. Redrow testified that due to the unpredictable nature of the flagging business, employees are not guaranteed a certain amount of hours. Corbin testified that although he was hired part time, he was assured that there would be plenty of work. He testified that initially he did not receive the calls from American because his phone was charging and the calls went directly to voicemail. By the time Corbin received the messages and returned the calls, the jobs were already given to another employee. Corbin claims that although he told American to call his home, American called his cell phone. Corbin testified that he only missed one day of work due to car problems.
On August 13, 2006, Corbin filed a claim for unemployment benefits. On September 18, 2006, a Claims Deputy determined that Corbin was not entitled to unemployment benefits because he failed to respond to the Department of Labor's request for information regarding his availability for work. Corbin appealed this decision and an Appeals Referee modified and affirmed the Claims Deputy's decision, holding that Corbin was not an unemployed individual as defined by 19 Del. C. § 3302(17). Corbin appealed the Referee's decision to the Unemployment Insurance Appeal Board ("Board") and a hearing was held on November 29, 2006. The Board affirmed the Referee's decision. Corbin now appeals that decision.
Appellant's Application for Benefits, D.I. 4 at 1.
Decision of the Claims Deputy, Id. at 3.
Referee's Decision, Id. at 6-8.
Decision of UIAB, Id. at 22-24.
Although the Board's analysis accurately reflects the preceding record and testimony, the decision erroneously states that Corbin was discharged from work. The transcript of the Board hearing indicates that Corbin was still employed by American during this stage of appeal. The Court relies on the Board's "Findings of fact and conclusions of law" as its holding and assumes that the Board's "Decision" section is merely a clerical error, See id. at 22-24.
III. STANDARD OF REVIEW
In reviewing a decision on appeal from the Board, this Court must determine if the decision is supported by substantial evidence and is free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, the Court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." The Court will only reverse a decision of the Board if its findings are not supported by substantial evidence, or where the Board has made a legal mistake.
H Short v. Unemployment Ins. Appeal Bd., 1986 WL 17127 (Del.Supr.)H (citing H Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308 (Del. 1975)H; H19 Del. C. § 3323(a)H). See also H Unemployment Ins. Appeal Bd. v. Div. of Unemployment Ins., 803 A.2d 931, 936 (Del. 2002)H.
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del.Super.Ct. 1994).
H Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)H.
H Delgado v. Unemployment Insurance Appeal Board, 295 A.2d 585 (Del.Super.Ct. 1972)H.
IV. ISSUE
The issue on appeal is whether the Board properly affirmed the Referee's decision that Corbin is not eligible to receive unemployment benefits because he is not "unemployed" as defined by 19 Del. C. § 3302(17).V. DISCUSSION
Pursuant to 19 Del. C. § 3302(17):
"Unemployment" exists and an individual is "unemployed" in any week during which the individual performs no services and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages payable to the individual with respect to such week are less than the individual's weekly benefit amount plus whichever is the greater of $10 or 50% of the individual's weekly benefit amount. The Department shall prescribe regulations applicable to unemployed individuals making such distinctions in the procedures as to total unemployment, part-total unemployment, partial unemployment of individuals attached to their regular jobs and other forms of short-time work as the Department deems necessary.
An individual must be unemployed in order to receive unemployment benefits. Corbin does not dispute that he is employed with American on a part time, on call basis. Corbin has already stipulated to the fact that he is employed with American and the record lacks any evidence that his missed opportunities for work amount to "unemployment" as defined by 19 Del. C. § 3302(17). Therefore, substantial evidence exists in the record to support the Board's finding that that Corbin is not unemployed, and therefore, ineligible for unemployment compensation. The Board's decision is therefore AFFIRMED.
UIAB Hr'g Tr. 29:16-30:1, Nov. 29, 2006, D.I. 4.
IT IS SO ORDERED.