KENNETH COLON v. BOARD OF REVIEW, DEPARTMENT OF LABOR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2453-05T52453-05T5

KENNETH COLON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and HOME SUPPLY AND

LUMBER CENTER, INC.,

Respondents.

_________________________________________

 

Submitted September 13, 2006 - Decided September 22, 2006

Before Judges Hoens and Sapp-Peterson.

On appeal from the Board of Review, Department of Labor, Docket No. 87,812.

Kenneth Colon, appellant, pro se.

Anne Milgram, Acting Attorney General, attorney for respondent Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; George N. Cohen, Deputy Attorney General, on the brief).

PER CURIAM

Appellant appeals the decision of the Board of Review (Board) finding that he was disqualified for unemployment compensation and, as a result, pursuant to N.J.S.A. 43:21-16(d), required to refund $5,100 he received as benefits. We affirm.

The pertinent facts are fairly straightforward. Appellant worked for respondent employer, Home Supply and Lumber Center, Inc. (Home Supply), as a yardman from February 28, 2000, until his date of termination, April 27, 2005. He filed for and received unemployment compensation benefits in the amount of $425 per week, commencing with the week ending April 30, 2005, and continuing through July 16, 2005.

Appellant challenged his termination by filing a grievance against Home Supply with the National Labor Relations Board (NLRB). The parties reached a settlement that included appellant's agreement to waive his right to re-employment, and Home Supply's agreement to pay appellant back pay in the gross amount of $4,940.50.

On August 17, 2005, appellant acknowledged, in writing, that he received a check payable to him in the amount of $3,496.11, which represented his net back pay. Appellant also, in writing, acknowledged that the check "represents the backpay [sic] due me in the above case. I understand this payment is in full payment of such backpay [sic]."

In light of the back pay award, on August 29, 2005, the Director of the Division of Unemployment and Disability Insurance mailed a Request for Refund to appellant seeking a refund of the $5,100 appellant received as unemployment compensation. On September 6, 2005, appellant appealed the refund request to the Appeal Tribunal (Tribunal). The Tribunal, relying upon N.J.S.A. 43:21-5(b), found that appellant was required to refund the amount of the benefits received because appellant "was restored to employment with back pay." Appellant appealed the Tribunal's determination to the Board. The Board adopted the Tribunal's findings of fact and conclusions of law, and affirmed the Tribunal's decision. This appeal followed.

Appellant contends: (1) the award he received from Home Supply was not back pay; (2) back pay is payment for work previously done; and (3) Home Supply erroneously reported the award as back pay.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by appellant are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1) (E), and we affirm substantially for the reasons expressed in the October 20, 2005, decision of the Tribunal and adopted by the Board in its December 12, 2005, decision. We add, however, the following comments.

Nothing in the record supports appellant's contention that Home Supply "erroneously reported the award as back pay to unemployment insurance." Rather, the record reflects that appellant freely entered into an agreement, accepted by NLRB, that included an award of back pay. The record further indicates that appellant received a check in the amount of $3,496.11 along with a transmittal letter to which appellant affixed his signature, evidencing his acknowledgement that he received the check and understood that it represented full payment for back pay.

The scope of our review of an administrative agency decision is limited. Brady v. Board of Review, 152 N.J. 197, 210-11 (1997). We are obliged to defer to a Board decision that is based upon an accurate view of the facts, is legally correct, and bears no indicia of arbitrariness, caprice, or unreasonableness. Ibid. The Board's determination here was supported by the record and is not arbitrary, capricious nor unreasonable. As such, it is entitled to our deference. Ibid.

Affirmed.

 

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A-2453-05T5

 

September 22, 2006