Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d. Jayne, J.A.D. (concurring).
The Board of Review of the Division of Employment Security, reversing an Appeal Tribunal, denied a claim made under N.J.S.A. 43:21-4(f) for disability benefits. The claimant appeals.
The claimant disputes the board's authority to act in the premises, asserting that the proceeding before it was not initiated within time.
N.J.S.A. 43:21-6 provides:
"(c) * * * [An appeal tribunal's decision] shall be deemed to be the final decision of the board of review, unless within ten days after the date of notification or mailing of such decision, further appeal is initiated pursuant to subsection (e) of this section.
(e) The board of review may on its own motion affirm, modify, or set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it * * *."
Here, the Appeal Tribunal decided in favor of the claimant. One day after the lapse of the ten-day period fixed by subsection (c) above set forth, the Chief of Unemployment Benefits attempted to appeal to the board from that decision.
The board found he was late. Nevertheless on its own motion it went on with the appeal, holding the claimant had left his work without good cause, N.J.S.A. 43:21-5(a), and differing with the Appeal Tribunal apparently as to both the law and the facts.
We limit our attention to the circumstances presented, and therefore do not deal with a case of a fraud on the Appeal Tribunal or of a void decision of that Tribunal, or other problems.
Subsection (c) fixes the time within which a further appeal under subsection (e) may be initiated. We think the word "appeal" is so to be construed as to include action taken on the board's "own motion" under subsection (e), looking to an affirmance, modification or setting aside of the Appeal Tribunal's decision. Cf. Charles Headwear, Inc., v. Board of Review , 11 N.J. Super. 321, 326 (App. Div. 1951), holding that the board had jurisdiction with respect to two cases decided by an Appeal Tribunal, and then referring to the board's removal of one case to itself on its own motion "within the statutory ten-day period." (Italics inserted.)
The rules of the Board of Review -- promulgated under its authority to prescribe rules as to the "conduct" (that is, the carrying on) of "appeals," N.J.S.A. 43:21-6(f) -- put a similar ...