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Adelson v. Board of Review

June 24, 2008


On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, BR 139,798.

Per curiam.


Submitted June 10, 2008

Before Judges Stern and Waugh.

Appellant, Lori Adelson, appeals from the dismissal of her claim for unemployment benefits. Adelson's initial application for benefits was denied on December 1, 2006. She did not appeal the denial until January 30, 2007, when she mailed her letter of appeal. On March 1, 2007, following a telephonic hearing, the Appeal Tribunal dismissed Adelson's appeal as untimely. She appealed to the Board of Review on March 12, 2007. The Board affirmed the Appeal Tribunal on April 30, 2007. Adelson filed a timely notice of appeal. We affirm.

Adelson worked for Respondent Mercedes-Benz U.S.A. (MBUSA) from 1990 to October 31, 2006. At the time she left MBUSA, she was its IT Applications Manager. In June 2006, Adelson and other employees received an email from MBUSA management announcing a Voluntary Termination Incentive Program (VTIP), which was designed to address MBUSA's need to reduce its operating budget. The email stated that MBUSA was "cautiously optimistic" it could do so through voluntary terminations. However, involuntary reductions in force were not ruled out. Under the VTIP program, eligible employees were given the option to submit their resignations through VTIP, but it was made clear that not all such resignations would be accepted.

Adelson contends that she felt that her position was vulnerable for a number of reasons, including a reorganization that she felt had the effect of making her position redundant. She also contends that she needed the severance and medical benefits that would not have been available to her in the event she declined to participate in VTIP and was subsequently terminated in an involuntary reduction in force. Consequently, she maintains, she believed she had no choice but to accept the VTIP. Her resignation was accepted, effective October 31, 2006. Adelson contends that her position was eliminated shortly thereafter.

Adelson's application for unemployment benefits was filed as of November 12, 2006. On December 1, 2006, a deputy to the Director, Division of Unemployment Insurance, determined, in addition to two technical determinations, that Adelson was disqualified for benefits because she left her job voluntarily and for reasons not attributable to the job. Adelson was uncertain when she received the notice of that decision. She thought it might have been around December 7, 2006, but was sure it was during December 2006.

Under N.J.S.A. 43:21-b(1), an appeal of the deputy's decision must be filed "within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification was mailed." An advisory to that effect was contained on the notice of determination sent to Adelson. The notice also included a calculation of the tenth day after mailing.

Adelson did not appeal the deputy's determination until she mailed her letter of appeal on January 30, 2007. She attributed the delay to her unfamiliarity with the process and her concern that an appeal might jeopardize her chances of receiving a favorable recommendation from MBUSA. When she heard that other MBUSA employees who took advantage of VTIP were receiving unemployment benefits, she decided to appeal.

In Rivera v. Board of Review, 127 N.J. 578 (1992), the Supreme Court held that where a statutory appeal period does not provide adequate notice, considerations of due process require that there be an ability to grant "good cause" exceptions. Id. at 586. Here, however, there is no allegation that the notice was not received or not received within sufficient time to file a timely appeal. In fact, Adelson herself concedes that she did not appeal because she did not want to offend MBUSA and only changed her mind after she heard that former co-workers were receiving benefits.

N.J.A.C. 12:20-3.1(i) sets forth the grounds upon which a "good cause" extension of the time to appeal can be granted. Those grounds are: "1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or 2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented." The reasons for delay offered by Adelson do not fall into either category. She clearly received the notice of determination in December and did not appeal until the end of the following month because she was concerned that an appeal would jeopardize her relationship with MBUSA.

In matters involving unemployment benefits, we accord particular deference on appeal to the Board's expertise, and its repeated construction and application of Title 43. See, e.g., Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). We discern no reason to disturb the Board's conclusion that Adelson's appeal was ...

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