WILLIE J. FRANKS v. BOARD OF REVIEW and USS TRANSPORT, LLC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0085-08T20085-08T2

WILLIE J. FRANKS,

Appellant,

v.

BOARD OF REVIEW and

USS TRANSPORT, LLC,

Respondents.

____________________________

 

Argued: January 13, 2010 - Decided:

Before Judges Axelrad and Fisher.

On appeal from the Board of Review, Department of Labor, Docket No. 159,011.

Tina Velantzas-Austin argued the cause for appellant.

Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review (Anne Milgram, Attorney General, Attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief).

Respondent USS Transport, LLC, has not filed a brief.

PER CURIAM

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.

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.

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 time. The union representative took the position that a "non-permanent seaman registered for work should not be precluded from receiving unemployment benefits during the period in which he awaits a job referral from the Union's hiring hall."

In its May 12, 2008 decision, the Appeal Tribunal, which the Board of Review affirmed, held that Franks was ineligible for benefits on the ground that he was unavailable for work and not actively seeking work in accordance with N.J.S.A. 43:21-4(c) and N.J.A.C. 12:17-8.10(b), and thus was liable for a refund of benefits in the amount of $3,920 pursuant to N.J.S.A. 43:21-16(d). The Tribunal noted, in part, that both Franks and his employer referred to the sixty-day period as "vacation" in separate documents sent in connection with the proceedings and that although Franks did not have a permanent vessel assignment, he "knew he could return to duty aboard the same ship at a favorable rate" as was the "common practice." Moreover, Franks was entitled to vacation pay for that period even though he elected not to take it at that time. The Tribunal was satisfied there was "[s]ubstantial evidence at the hearing" that Franks made a "cursory effort to seek work by registering with the union" because it was required under his contract but not from any genuine desire for work. The agency concluded:

[Franks'] established pattern of 120-day tours, which continues to the present, followed by vacation periods where he was not recalled nor offered any other work, and then returning to his ship, revealed that [Franks] was not genuinely attached to the labor market. The fact that he has returned to the same ship since 2003 supports the conclusion that this was, in essence, a permanent vessel assignment.

On appeal, Franks argues that vacation benefits under the union ERISA vacation plan are not synonymous with vacation pay; he was laid off for sixty days without pay; he was willing, able and available for work through the union hiring hall during that time; and is thus entitled to employment benefits. Franks further argues that the agency's decision was manifestly erroneous and not entitled to our deference.

The burden of proof is upon the claimant to establish his right to unemployment benefits. Brady v. Bd. of Review, 152 N.J. 197, 218 (l997). The judicial role in reviewing decisions of administrative agencies is restricted. We accord substantial deference to the interpretation given by an agency to the statute it is charged with enforcing, Board of Education of Neptune v. Neptune Township Education Association, l 44 N.J. 16, 31 (l996), give deference to credibility determinations made by the fact finder, Doering v. Board of Review, 203 N.J. Super. 241, 245 (App. Div. l985), and determine if the findings "could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quotation and citation omitted).

"In reviewing the factual findings made in an unemployment proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the fact finder could reasonably so conclude upon the proofs." Brady, supra, 152 N.J. at 210 (quotation and citations omitted); Zielenski v. Bd. of Review, 85 N.J. Super. 46, 54 (App. Div. l964). Accordingly, if there is "substantial credible evidence" to support the agency's determination, we may not substitute our own judgment for that of the agency even if we "might have reached a different result." Ibid. We must uphold the Board's decision when there is substantial credible evidence in the record as a whole to support its factual findings. Ibid.; Self v. Bd. of Review, 91 N.J. 453, 459 (1982). In our limited review, unless we find an agency's action was arbitrary, capricious or unreasonable, we will not disturb it. Brady, supra, 152 N.J. at 210.

Even if the fact finder misinterpreted Tellez' letter to mean that the union's agreement provides that the purpose of the sixty-day sojourn is for "rest and safety," giving due regard to the opportunity of the fact finder to assess Franks' credibility in light of the applicable law, the record still supports the agency's finding that Franks made only a cursory effort to seek work and was not "genuinely attached to the labor market" during that time. See Krauss v. A&M Karagheusian, Inc., 13 N.J. 447, 457-58 (1953) ("The [availability for work] test [of N.J.S.A. 43:21-4(c)(1)] is met if it appears that the individual is willing, able and ready to accept suitable work which he does not have good cause to refuse, that is, when he is genuinely attached to the labor market."). Franks was required by union rules to leave the ship for a period of time after 120 consecutive days of service, which he did, and he consistently returned to the same position. Thus, although his job classification may not have permitted him to have a permanent vessel classification, the reality is that he had such an assignment. As noted by the union leader, he, like other seamen, would have "eagerly accept[ed] a better job if one became available."

However, it is clear from the record that Franks did not make a sincere effort to obtain employment "either in his usual type of work or in such other suitable work as he may be able to do" during the sixty-day period that Franks was on shore. See Worsnop v. Bd. of Review, 92 N.J. Super. 260, 265 (App. Div. l966). A claimant must do more than contact his union hall daily. Id. at 266. Moreover, Franks testified he preferred a position as an electrician because it was "the best job in our union" even though he was never offered an electrician's position aboard any ship. He provided no testimony that he actively bid on any other available jobs at the union hall.

Nor does the record support Franks' claim that he was laid off without pay for sixty days and therefore entitled to employment benefits. Both he and his employer referred to the "off ship" time as "vacation." As additionally noted by the Appeal Tribunal, Franks was entitled to receive his vacation pay during that time and chose to defer it. An individual who is on vacation with pay is not unemployed and is therefore ineligible for benefits. See N.J.S.A. 43:21-19(m)(1)(A). Franks cites no provision in ERISA that conflicts with the Unemployment Compensation Law or would exempt such "vacation benefits" from being treated as wages for purposes of determining an individual's eligibility under a state unemployment compensation scheme.

Our examination of the record, in light of our standard of review, satisfies us that the Board's final decision disqualifying Franks for unemployment benefits pursuant to N.J.S.A. 43:21-4(c) was properly premised upon facts in the record and consonant with relevant statutory provisions, and was not arbitrary, capricious or unreasonable.

Franks does not challenge his liability to refund the aforementioned benefits he received, which the Board determined he was not entitled to receive. N.J.S.A. 43:21-16(d) requires the repayment of benefits to which a claimant is not entitled, even when those benefits were obtained in good faith. Accordingly, the administrative action holding Franks liable for a refund in the amount of $3,910 was properly made.

Affirmed.

 

It appears from Franks' testimony that this registration secured his return to his position as a pump man aboard the Philadelphia although that is not entirely clear. He also testified that he found out he was going to be reporting to that vessel assignment when he reported to the union hall on the sixtieth day and asked for his old job back because he could not find another job. Without cite, his brief stated he was required to report to the union official a day or two before the end of the sixty-day layoff to request his previous job, if available, or else forfeit his option. Either way, Franks returned to his position as a pump man aboard the Philadelphia on August l, 2004.

After filing for unemployment benefits, in an October 27, 2005 letter to the claims examiner explaining that he would be unavailable to an interview while at sea, he requested an adjournment to the sixty-day period when he was off ship, referring to it as "vacation time." However, Franks later testified before the Appeal Tribunal that the sixty-day period was not a vacation, but rather was "off time" required by the union. He acknowledged his employer referred to it as "vacation"; this term was used by the employer on its protest of benefits form.

N.J.S.A. 43:21-4(c) provides that "an unemployed individual shall be eligible to receive benefits with respect to any week only if: [t]he individual is able to work, and is available for work, and has demonstrated to be actively seeking work."

N.J.A.C. 12:17-8.10(b) provides:

Where a union or employment contract calls for a vacation or holiday period with pay and permits the employer to close its operations for a specified period, the employees shall be ineligible for benefits. However, any employee who does not receive pay for the contractual vacation period or any part thereof may receive unemployment benefits if otherwise eligible.

N.J.S.A. 43:21-16(d) provides: "When it is determined . . . that any person . . . has received any sum as benefits . . . while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits, such person . . . shall be liable to repay those benefits in full."

In fact, in Massachusetts v. Morash, 490 U.S. 107, 118, 109 S. Ct. 1668, 1674-75, l 94 L. Ed. 2d 98, 111 (1989), the United States Supreme Court held that ERISA does not pre-empt a state law regulating vacation pay.

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A-0085-08T2

February 3, 2010