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Heulitt v. Board of Review

May 6, 1997


On appeal from Department of Labor, Board of Review.

Approved for Publication May 6, 1997.

Before Judges Baime and Braithwaite. The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by


This is an appeal from the denial of appellant's claim for unemployment benefits and from a decision requiring him to refund amounts he was paid during the period of his disqualification. We affirm both determinations. Although additional issues are raised, the principal question presented is whether the Board of Review has jurisdiction to deny unemployment benefits to a claimant on a ground other than that found by the Appeal Tribunal where the employer has not participated in the administrative proceedings and no cross-appeal has been filed. We hold that the Board has complete review powers once a claimant appeals and may deny benefits on a statutory basis other than that relied upon by the Appeal Tribunal.


On March 18, 1995, appellant commenced his employment as a multi-dwelling housing inspector with the Department of Community Affairs. The letter informing appellant that his application for employment had been accepted by the Department stated that he would be required to use his own automobile and would be reimbursed at the rate of twenty-five cents per mile. However, appellant was told immediately upon his hiring that he would be provided with a state car. A brochure was issued to all newly employed inspectors indicating that their working hours were between 9:00 a.m. and 5:00 p.m. with a one hour lunch period. Inspectors whose commute exceeded one hour could request that their first assignment begin at 9:30 a.m. or that their last assignment conclude at 4:30 p.m. Regulations provided that inspectors be given compensatory time off for overtime not exceeding five hours per week. N.J.A.C. 4A:3-5.3(a)(2), (c)(2), and (d)(2). Inspectors working beyond forty hours per week were entitled to "cash payment" or "compensatory time-off" at a rate of one and one-half times the hourly pay. N.J.A.C. 4A:3-5.5(a)(1), (b)(2), (3). The regulations further provided that appointing authorities were required to conduct a "continuous and periodic review" of employee overtime practices toward the end of assuring completion of the work "during regular work time." N.J.A.C. 4A:3-5.9(a)(3). Written authorization for overtime hours had to be obtained by an employee from his employer in advance of the work, or, if this was not possible, immediately thereafter. N.J.A.C. 4A:3-5.9(a)(1).

Appellant resigned from his position shortly after completing his training period, complaining that (1) he did not want to use a state car, (2) he wished to begin work before 9:00 a.m. and conclude his workday before 5:00 p.m., and (3) he was denied overtime pay for work performed after normal working hours. A claims officer denied appellant's application for unemployment benefits on the ground that appellant resigned voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5(a). Appellant appealed. The Appeal Tribunal reversed the decision of the claims officer, but found that appellant was disqualified because he failed to apply for "available, suitable work" following his resignation. N.J.S.A. 43:21-5(c). The effect of the Appeal Tribunal's decision was to substantially reduce the period of appellant's disqualification. Appellant nevertheless appealed to the Board of Review. The Board reversed the decision of the Appeal Tribunal and reinstated the finding of the claims officer that appellant quit work voluntarily without good cause attributable to the work. The Board subsequently ordered appellant to refund the benefits he had improperly received. II.

Preliminarily, we conclude that the Board had jurisdiction to reinstate the claims officer's decision disqualifying appellant under N.J.S.A. 43:21-5(a) notwithstanding the fact that appellant's appeal was from the Appeal Tribunal's determination disqualifying him under N.J.S.A. 43:21-5(c). Specifically, we hold that the Board's jurisdiction was complete and that it had the power to review the Appeal Tribunal's decision in all of its aspects.

N.J.S.A. 43:21-6(c) provides that a decision of an Appeal Tribunal "shall be deemed to be the final decision" unless within ten days a further appeal is initiated. N.J.S.A. 43:21-6(e) authorizes appeals to the Board of Review by interested parties and further provides that the Board "may on its own motion affirm, modify, or set aside any decision of an Appeal Tribunal." The statute does not limit the scope of the review, nor does it expressly or impliedly authorize a partial appeal or the appeal from only part of the decision of an Appeal Tribunal. As we said in Charles Headwear, Inc. v. Board of Review, 11 N.J. Super. 321 (App. Div. 1951), "the appeal removes the claim in its entirety" and confers upon the Board complete review powers. Id. at 328. "Any other holding would be inconsistent with the statutory scheme for the Disposition of disputed benefit claims." Ibid.

If we were to conclude that the Board erred in reviewing the Appeal Tribunal's holding under N.J.S.A. 43:21-5(c) - a holding which was patently wrong - the result would be to grant appellant, and others similarly situated, a windfall. The Board's duty is to "preserve the [unemployment compensation] fund for the payment of benefits to [eligible] individuals and to protect it against the claims of others who would prefer benefits to suitable jobs." Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 455, 100 A.2d 277 (1953). The basic policy of the law is advanced when benefits are rightly denied in improper cases as well as when they are rightly granted in proper cases. Id. at 455-56. Constriction of the Board's review powers would contravene this important public policy with no visible compensating gain.

We note that the only other party with a pecuniary interest in the outcome of the case is the employer. Our experience indicates that employers rarely participate in unemployment compensation cases, particularly at the Appeal Tribunal stage of the administrative proceedings. We, therefore, cannot rely on cross-appeal procedures to protect the unemployment fund from improper invasion. A decision barring the Board from reviewing the entirety of the Appeal Tribunal's decision would thus foreclose any administrative opportunity to correct erroneous findings in the claimant's favor.

We do not read Von Ouhl v. Board of Review, 254 N.J. Super. 147 (App. Div.), certif. denied, 130 N.J. 10 (1992) as inconsistent with our Conclusion. There, the appellant's notice of appeal to the Board from the Appeal Tribunal's decision specifically referred to only one of several issues that had been determined. Id. at 150. Another panel of this court concluded that the Board's jurisdiction was limited to the single issue designated in the claimant's notice of appeal. Id. at 153. We need not offer our opinion respecting whether Von Ouhl was correctly decided. We merely note that, in contrast to Van Ouhl, the notice of appeal to the Board in this case was in no way limited. Appellant could not reasonably have expected that the Board would limit its inquiry to one narrow question and ignore the overriding issue in the case - his eligibility to obtain benefits. To the extent that Van Ouhl can be construed more broadly, as barring the Board from reviewing all of the issues decided by the Appeal Tribunal, we disagree with that decision. Just as the Board may determine a claimant's eligibility on a basis different than ...

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