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Salvador Murillo v. Board of Review and Halka Nurseries

August 16, 2011

SALVADOR MURILLO, PETITIONER-APPELLANT,
v.
BOARD OF REVIEW AND HALKA NURSERIES, INC., RESPONDENTS-RESPONDENTS.



On appeal from Department of Labor, Board of Review, Case No. 159,410.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 5, 2011

Before Judges Wefing, Baxter and Hayden.

Petitioner Salvador Murillo appeals from a Final Decision of the Board of Review affirming a decision of the Appeal Tribunal finding him disqualified for unemployment benefits as of January 1, 2006, under N.J.S.A. 43:21-5(a) and, as a consequence, liable to refund the more than $13,000 he had received as such benefits.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

Before proceeding to analyze the underlying facts of this matter, we are compelled to note that a series of unfortunate procedural missteps have occurred in this matter, delaying its final resolution. Among those missteps is the inability of the Division to locate documents in its files and the action of the Board of Review in submitting an appendix to its appellate brief in which it has included documents that were never part of the record below without having sought leave to do so. Petitioner has properly objected to this disregard of proper appellate practice. In our analysis of this matter, we have ignored those documents and have reached our conclusion without consideration of their contents.

Petitioner was employed for more than twenty years for Halka Nurseries. His position at the relevant time period was that of equipment operator, and the employer described petitioner as one of his key employees. Petitioner filed a claim for unemployment benefits in January 2006, reporting that he had been temporarily laid off. Petitioner had submitted similar claims for unemployment compensation benefits in 2004 and 2005, in light of the seasonal nature of the work. Petitioner's claim was approved, and he ultimately received benefits in excess of $13,000. Based upon a communication from the employer well beyond the ten-day deadline to contest a determination with respect to eligibility, the Department of Labor and Workforce Development sent a notice to petitioner dated July 16, 2007, advising him that he was disqualified for unemployment benefits because he had left work voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5(a).

This notice advised petitioner that he had ten days to file an appeal. Petitioner, who has limited proficiency in English, filed his appeal on August 14, 2007, beyond the ten-day deadline. The Appeal Tribunal held a hearing on September 17, 2007. Petitioner testified that he had been laid off in January 2006 and never received any instructions to return to work. He also testified about the reasons for the delay in filing his appeal, noting his difficulties with English. The Appeal Tribunal dismissed his appeal for lack of jurisdiction, a decision with which the Board of Review concurred. Petitioner then appealed to this court. While his appeal was pending, the Board of Review filed a motion seeking to remand the matter for a determination on the merits. The Board noted in its moving papers petitioner's lack of fluency and the nineteen-month delay between the initial determination of eligibility and the notice of disqualification.

Petitioner opposed this motion, arguing that his due process rights had been violated by the manner in which the Board determined his ineligibility. He contended that we should deny the requested remand and decide those procedural issues. The Board responded by noting that according to a review of its file, petitioner had been temporarily laid off, and his employer had objected when its account was charged for benefits paid when Murillo did not return to work in March. The Board pointed out that in such a situation, petitioner would not be liable to refund the entire amount of unemployment compensation received but only the amount received after petitioner failed to return to work when work was available. After reviewing the parties' papers, we granted the Board's motion.

On remand, two further hearings were held, at which the employer testified, as well as his secretary. Petitioner's employer disputed the assertion that petitioner had been laid off. He said rather that petitioner came to him in late December and after receiving his paycheck and Christmas bonus, said he was going to Mexico. He said petitioner did not provide any information about plans to return.

The employer did testify that depending upon the weather, he would temporarily lay off employees at that time of year. He also said that he had a number of employees whose families were in Puerto Rico and he would regularly lay them off during the winter months so they could collect unemployment benefits and return to Puerto Rico to see their families. He did not place petitioner in that category. As we noted, the employer described petitioner as one of his key employees and said it was the weather that would determine whether petitioner would be laid off.

The employer testified that employees who were seasonally laid off would return to work on March 1. He said that this practice was well known to petitioner and that petitioner never contacted him again after telling him he was going to Mexico. The employer also testified that petitioner's brother was also employed at the nursery and that petitioner's brother never inquired about the possibility of petitioner returning to work.

Petitioner's attorney objected to this testimony, arguing that this testimony exceeded the scope of the remand hearing, which the attorney contended was limited to determining the date beyond which petitioner was no longer eligible for unemployment benefits, as opposed to re-examining his eligibility from the outset. The appeals examiner rejected this argument and considered the substantive merits of petitioner's eligibility. We see no error in this. The Board's moving papers sought a remand to permit a determination "on the merits." It was only the Board's responding papers, submitted in response to petitioner's opposition to the requested remand, that included references to the possibility that petitioner might not be responsible to refund the entire amount of benefits he had received. We granted the motion to remand, without imposing any limitation upon the scope of the remand proceedings.

Similarly, the fact that we remanded the matter for a determination on the merits disposes of petitioner's argument that the employer failed to show good cause ...


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