Opinion
DOCKET NO. A-3579-12T1
06-19-2014
FRANHEL AMARO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and MIRA LIGHTING AND ELECTRIC SERVICE, INC., Respondents.
Franhel Amaro, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ernest Bongiovanni, Deputy Attorney General, on the brief). Respondent Mira Lighting and Electric Service, Inc., has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Higbee.
On appeal from the Board of Review, Department of Labor, Docket No. 393,163.
Franhel Amaro, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ernest Bongiovanni, Deputy Attorney General, on the brief).
Respondent Mira Lighting and Electric Service, Inc., has not filed a brief. PER CURIAM
Claimant Franhel Amaro appeals from a final decision of the Board of Review dated February 7, 2013, affirming a December 10, 2012 decision of the Appeal Tribunal ordering Amaro to repay $7854 in unemployment benefits. We reverse and remand for further proceedings consistent with this opinion.
The record is less than clear in various respects. We begin with the process by which Amaro was determined to be ineligible for benefits. According to his appellate brief, Amaro worked for Mira Lighting & Electric Service, Inc. from 2005 to 2011, when the employer laid him off due to lack of work, along with another employee. However, according to the April 11, 2012 decision of the Appeal Tribunal, Amaro applied for unemployment benefits on November 21, 2010. On April 14, 2011, the Deputy found Amaro eligible for benefits beginning on February 20, 2011, a decision the Appeal Tribunal initially affirmed. The April 11, 2012 decision recites that the employer appealed, and the Board remanded the matter to the Appeal Tribunal for rehearing.
The April 11, 2012 decision further states that the "employer participated in a telephone hearing" on April 5, 2012, but the decision does not indicate that Amaro participated and it does not provide his version of events.
The employer's version was that Amaro worked as a union electrician helper, from January 12, 2011 through March 15, 2011, when he "voluntarily left the job." The decision states that "[t]here were no other issues disputed by the appellant employer." The employer stated that Amaro was terminated from employment after the union notified the employer that "claimant was not a member in good standing . . . because his union dues was [sic] lapsed." The collective bargaining agreement precluded the employer from keeping employees on the job who were "not in good standing with the union." The employer claimed that work was available for Amaro if he was in good standing with the union. As previously noted, the decision did not indicate Amaro's version of events, including whether he had an opportunity to pay his outstanding union dues before being fired.
The decision does not explain how Amaro could have filed an unemployment claim on November 21, 2010, if he was not terminated until March 15, 2011.
From the April 11, 2012 decision's discussion of the difference between a discharge for misconduct connected with the work, which results in an eight-week disqualification for benefits, N.J.S.A. 43:21-5(b), versus a voluntary quit, which results in a complete disqualification, N.J.S.A. 43:21-5(a), we infer that the Deputy initially disqualified Amaro for misconduct. The Appeal Tribunal decision found that Amaro's failure to pay his union dues, which was a prerequisite for employment, was "considered voluntary and without good cause attributable to such work." See N.J.S.A. 43:21-5(a). Hence, Amaro was deemed completely disqualified for benefits, and the Appeal Tribunal decision "remanded to the Director" the issue of his potential liability for a refund of benefits. The Director ordered a refund in a notice dated May 8, 2012. In classic bureaucratese, the notice advised Amaro that "You were not eligible for the unemployment benefits listed on the back of this form because: YOU WERE INELIGIBLE."
Amaro sent the Board a letter dated May 14, 2012, which was received by the Board on May 17, 2012. The letter was short, simply stating "I, Franhel Amaro strongly disagree with the previous decision made by the Department of Labor. Therefore I want to Appeal this decision." Perhaps, having been advised in the Tribunal's April 11, 2012 decision that the matter was being "remanded" to the Director for a decision on the refund issue, Amaro waited until he received the refund decision before filing one letter appealing from both decisions. The record contains a July 5, 2012 memorandum from the Board's Executive Secretary to the Supervising Appeals Examiner, noting that "The attached letter is also an appeal of the refund that resulted from this Appeal Tribunal decision. Please take whatever action you deem necessary." (emphasis added).
On July 6, 2012, the Board dismissed Amaro's appeal of the disqualification decision as untimely, because it was filed beyond the twenty day time limit set forth in N.J.S.A. 43:21-6(c). However, the same July 6 Board decision recited that Amaro's appeal of the Director's May 8, 2012 refund decision was timely and had been forwarded to the Appeal Tribunal.
In support of his appeal, Amaro submitted a Statement of Appeal dated August 7, 2012. His statement recited that
I just received a letter from the Appeal Tribunal saying that my appeal was denied. I have no idea why my employer Mira Lighting filed an appeal on my benefits so they can be stopped. I contacted [the employer] on his cell phone . . . to simply ask for work and if he would hire me again I'll return to work as soon as possible. [A]nd his answer was no he clearly stated that he will never hire me again. So therefore I'm pursuing this appeal once again because to my understanding I still have benefits available to me if I win this appeal. I have no idea where this appeal came from and why!
Clearly, Amaro was still attempting to appeal the denial of benefits. The hearing on the refund was held by telephone on December 1, 2012. We have read the transcript of the hearing, and it can best be described as truncated and no doubt confusing to Amaro. Again, the examiner recited that the claim was filed on "November 21, 2010" and, when Amaro asked why he had been disqualified for benefits, the examiner told him he was "discharged for severe misconduct." The examiner gave Amaro little opportunity to speak and no opportunity to explain why it was, or might be, inequitable to require him to refund the benefits, even though that is one ground on which the Board may determine to waive repayment of benefits. See N.J.A.C. 12:17-14.2(a)(3).
On this appeal, our review is limited to determining whether the Board's decision is arbitrary and capricious. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We consider whether the decision is supported by substantial credible evidence and is consistent with applicable law, including procedural due process. Ibid. There is no doubt that, absent an exception justifying waiver, the unemployment statute, N.J.S.A. 43:21-16(d), requires full repayment of benefits received by an individual who was not legally entitled to them. Our concern is less with the application of the statute, than with the process the agency followed here.
First, the Appeal Tribunal's decision denying benefits to the claimant was potentially confusing. The decision advised that benefits were denied. However, the decision then stated that the matter was being "remanded" to the Director to decide if a refund would be required. That language implied that the administrative process was ongoing rather than complete and final. Neither the decision itself nor the attached page of general advice concerning the time for appeal explained that, even if the case was remanded for a refund determination, the claimant must file an immediate appeal from the disqualification determination and could not wait for the outcome of the refund decision before filing the appeal. Hence, a claimant may reasonably believe that he or she has twenty days to file one appeal from both decisions, with the time running from the later decision. That seems to have been the case here, where Amaro sent one letter, dated six days after the refund notice.
Moreover, after reviewing the record provided, we have the distinct impression that a mistake may have been made with respect to the denial of benefits, or at least that Amaro's version of events may not have been fairly considered. Further, research reveals no reported decisions in this State concerning whether failure to pay union dues, without more, constitutes a voluntary quit. The issue appears to be novel.
For all of these reasons, in the interests of justice, in the unusual circumstances of this case, we deem Amaro's notice of appeal to include both the Board's July 6, 2012 decision denying his administrative appeal as untimely, and the Board's February 7, 2013 decision ordering a refund. See Hopkins v. Bd. of Review, 249 N.J. Super. 84, 89-90 (App. Div. 1991). We reverse the July 6, 2012 decision and remand to the Board with direction to consider Amaro's appeal of the April 11, 2012 decision on the merits. If the Board once again disqualifies Amaro for benefits, he shall receive a new hearing on the repayment issue.
Remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION