On appeal from the Board of Review, Department of Labor, Docket No. 231,457.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2011 - Decided Before Judges C.L. Miniman and LeWinn.
Appellant, Joseph Knoebl, appeals from a final agency decision of the Board of Review (the Board) denying his application for unemployment compensation benefits because Knoebl's appeal from the initial denial of benefits was filed beyond the time provided by N.J.S.A. 43:21-6(b)(1) without a showing of good cause for the late filing.
Knoebl had been employed as an operations manager by respondent Anheuser-Busch, Inc. (Anheuser-Busch) for over twenty-nine years when, in 2008, Anheuser-Busch announced an enhanced retirement program on June 27, 2008. The company sought to reduce the total salaried head count by ten to fifteen percent. It stated in its announcement of the program that:
To help achieve this, some open positions are being eliminated[,] and an enhanced retirement program will be available beginning August 1. Salaried employees who will be 55 or older by Dec. 31, 2008[,] will be offered three years of additional service and age, which will apply to retiree medical eligibility as well. Eligible employees will receive more information on this next month.
The company generated flow charts, one of which was applicable to Knoebl's operations department under the supervision of Senior Manager Stenzel. Certain positions were color-coded yellow for immediate implementation, other positions were color-coded red for implementation within two to four months, and the remaining positions were color-coded green for "in position." Knoebl's position was color-coded green. Of fifty-six employees in the operations department, fourteen took early retirement.
Three of the fourteen were in positions color-coded red, and the other employees were in positions color-coded green.
Knoebl accepted the early retirement package and resigned as of December 1, 2008. Knoebl then filed a claim for unemployment benefits effective January 18, 2009. The Deputy Director of the Division of Unemployment and Disability Insurance (the Division) mailed a determination on February 19, 2009, holding Knoebl disqualified for benefits from November 30, 2008, under N.J.S.A. 43:21-5(a) on the grounds that he left work voluntarily and without good cause attributable to the work.
Pursuant to N.J.S.A. 43:21-6(b)(1), Knoebl had ten days from the date of mailing within which to appeal the decision of the Deputy Director; that is, Knoebl was required to file his appeal on or before March 2, 2009. He did not do so until May 13, 2009, more than two months late.
Nonetheless, the Appeal Tribunal conducted a hearing on September 8, 2009. Several issues were raised by Knoebl in his appeal that are not at issue here. Thus, we limit our discussion of the evidence adduced at the hearing to that relevant to the timeliness of Knoebl's appeal. When asked what he did after receiving the determination of benefits, Knoebl testified that he accepted the determination because he read in the information booklet supplied by the Deputy Director that he was not entitled to benefits because he took early retirement. However, in subsequent conversations with Anheuser-Busch employees who also took early retirement, he learned that some were receiving unemployment benefits even though "they had the same exact early retirement that [Knoebl] did." That caused him to change his mind about accepting the initial determination, and he filed an appeal. He did not learn this information until after the time to appeal expired.
When asked if the company informed Knoebl that his position was going to be eliminated, he responded, "No." However, the company identified thirteen transitional positions, including his. He knew from this that "there was going to be some sort of movement." He said that a lot of the people that did not take the early retirement package were laid off in January. He expressed that it was not fair that some employees could receive unemployment compensation whereas others could not. He knew that, if he did not take the early retirement, he would either be moved out of his position or laid off.
The Appeal Tribunal mailed its decision on September 9, 2009. It found that Knoebl's appeal was untimely and then addressed the issue of good cause as follows:
Good cause exists when it is shown that the delay is due to circumstances beyond the individual's control or for situations which could not have been reasonably foreseen or prevented. In this case, the claimant's decision to appeal several months after receiving the Deputy's determination was based on his own assumption that he had nothing to appeal. The claimant was aware of his appeal rights and did not have good reason for such delay. The appeal was not filed within the established limits and good cause has not been shown for the appeal being filed late. The Tribunal has no jurisdiction to rule on the ...