On appeal from the Board of Review, Department of Labor, Docket No. 159,011.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Fisher.
Claimant Willie Franks appeals from an adverse determination of the Board of Review (Board). The Board affirmed the Appeal Tribunal's decision, which determined Franks was disqualified for unemployment benefits under N.J.S.A. 43:21-4(c) and N.J.A.C. 12:17-8.10(b), from June 6, 2004, through July 31, 2004. Franks was also found liable for a refund of benefits in accordance with N.J.S.A. 43:21-16(d). We affirm.
Franks filed a claim for unemployment compensation benefits effective June 6, 2004, and received benefits through July 31, totaling $3,910. Determinations of the Deputy Director and Director of the Division of Unemployment and Disability Insurance, respectively, were mailed on December 9, 2005, holding Franks disqualified for benefits under N.J.S.A. 43:21-4(c) because he was not available for work, and liable for a refund of benefits received under N.J.S.A. 43:21-16(d). Franks appealed to the Appeal Tribunal.
On January 6, 2006, a hearing was held before the Appeal Tribunal, and by letter of January l9, the Tribunal affirmed the determinations of the Deputy and the Director. Franks appealed to the Board. On March 6, 2006, the Board affirmed. Franks filed an appeal to the Appellate Division and on October 17, 2006, we entered an order for final remand. (A-3808-05T1; M-379-06).
A second hearing was held by the Appeal Tribunal on September 11, 2007. In a decision mailed on October 2, 2007, the Tribunal again affirmed the Deputy and Director's determinations. Franks appealed to the Board and on January 28, 2008, the Board again remanded the matter to the Tribunal for a new hearing, which was held on April 29, 2008. In a decision mailed on May l2, 2008, the Appeal Tribunal again affirmed the determinations of the Deputy and Director holding Franks ineligible for unemployment benefits under N.J.S.A. 43:21-4(c) and liable for a refund of benefits under N.J.S.A. 43:21-16(d). Franks appealed to the Board and on July l7, 2008, the Board affirmed. This appeal ensued.
The record reveals that appellant is a member of the Seafarers International Union (SIU) and has held various positions as a merchant seaman since l972. He is registered as a Qualified Member of the Engine Department (QMED), with several different job ratings, including pump man, electrician, junior engineer and machine maintenance. Franks' preferred assignment is electrician. Since 2003, Franks has been employed by the USS Transport Company as a QMED pump man aboard the ITB Philadelphia.
SIU rules require union members to remain working aboard the vessel they are assigned to for l20 consecutive days, after which they must take sixty days off as a part of a rotation to "allow more seamen employment opportunities in a limited market." Franks had worked aboard the Philadelphia as a pump man for l20 days until June 4, 2004, after which he was required to take his sixty-day leave. He testified that he registered with the union hall within the requisite seventy-two hours after discharge from the vessel.*fn1
Franks also registered with the local union hall in an attempt to secure employment. He explained that he could bid on another job during the sixty-day period, preferably as an electrician, which in his opinion was "the best job in [the] union," and that jobs are awarded based on seniority and time of registration in the union hall. However, if Franks accepted another job during the hiatus from the Philadelphia or any other ship, he would forfeit his right to return to his previous position aboard that ship. Nevertheless, Franks claimed he would have accepted work on another vessel even if it meant he would have forfeited his assignment on the Philadelphia. He testified he was available and actively sought work during the sixty-day leave period by making phone calls and attempting to report to the union hall daily, which was the way to obtain a position as an electrician, but was never offered that position.
Franks also testified he could have received "vacation pay," during the sixty-day period that he was off the Philadelphia, but did not. He explained he typically applied for his "vacation pay" on an annual basis although he could defer it for up to three years.*fn2
Franks returned to the Philadelphia as a pump man on August l, 2004, and worked for l20 days. He was off the ship from December l, 2004, and returned on February l2, 2005. This pattern of working for l20 days, taking sixty days off, and returning to the same ship, continued at least through 2008.
Franks provided a December 28, 2005 letter written by the SIU's vice president, Augustin Tellez, stating that a member may seek a different assignment aboard a different vessel during his sixty-day rotation, and noting that "[m]any seamen do in fact register for employment during their time off and would be eager to accept a better job if one became available." He also explained that although SIU members do not have permanent vessel assignments, they do have the right to return to their last position once the sixty days have run. However, if during the sixty-day period they accept a position on a different vessel, they relinquish their right to return to their original vessel. Tellez also stated that union members may elect to receive vacation benefits under its Seafarers Vacation Plan, regulated by the Retirement Income Security Act (ERISA), during the sixty-day leave period or defer receipt of it for an extended period of ...