CHRISTOPHER M. FRYER v. BOARD OF REVIEW, DEPARTMENT OF LABOR, -

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0495-05T50495-05T5

CHRISTOPHER M. FRYER,

Claimant-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR,

-Respondent,

and

AIR CANADA,

Respondent-Respondent.

_______________________________

 

Submitted: January 17, 2007 - Decided:

Before Judges Kestin and Payne.

On appeal from the Board of Review, Department of Labor, 73,554.

Christopher M. Fryer, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

No brief was filed by any other party.

PER CURIAM

Claimant, Christopher M. Fryer, appeals from a Board of Review decision holding him disqualified for unemployment benefits as of March 27, 2005. In so holding, the Board reversed a determination of the Appeal Tribunal that the effective date of disqualification was May 29, 2005. The Appeal Tribunal, in turn, had reversed a decision at a lower level holding claimant disqualified as of the earlier date.

The questions before us implicate the rights of claimant and his employer, under the law governing unemployment compensation, N.J.S.A. 43:21-1 to -71, and regulations adopted thereunder, arising from claimant's acceptance of a voluntary retirement package. The question in this matter is the effective date of claimant's retirement, specifically whether the employer's choice of an effective date sixty-three days earlier than the resignation date claimant chose was the operative date for unemployment compensation purposes. We remand for reconsideration based upon an evaluation of the particular factual circumstances of this matter.

In his brief, claimant asserts that the Department of Labor has billed him for $4,024 in benefits that he received following the Appeal Tribunal decision holding him disqualified as of a later date, May 29, 2005, until the Board held him to have been disqualified as of the earlier date. The issue over repayment of benefits received is not properly before us because the record on appeal does not include an administrative adjudication of that question. That subject must be included within the scope of the issues to be addressed on remand, however.

The background facts are undisputed. Claimant had been employed by Air Canada since May 25, 1979. In April 2003, as part of a bankruptcy reorganization plan, the employer offered an early retirement incentive program to employees who qualified on the basis of seniority. Claimant was not eligible for the program at that time.

New work rules were imposed on those who remained with the company. According to claimant, these involved lower salary payments in several categories: a reduction of regular wages by ten-and-one-half percent, elimination of shift premiums with an alleged value to claimant of $1,100 per year, elimination of longevity pay with an alleged value to claimant of $425 per year, and a reduction of holiday pay by sixty-six percent; elimination of some paid vacation days and holidays; elimination of paid lunch hours, scheduled wage increases, and allowances for the cost of uniform cleaning and overtime meals; institution of premium payments for health and dental care coverage; and the loss of 1200 hours of accrued sick/injury time, which claimant represents as equivalent, in his case, to seven-and-one-half months. According to claimant, the total dollar value of the actual cuts in wages and benefits amounted to a decrease in his earnings exceeding twenty-two percent.

The focal issue in the matter as it has been considered to date is whether the effective date of claimant's retirement in 2005 should be the date he chose, as determined by the Appeal Tribunal in overruling the lower-level determination; or the date the employer chose, as determined by the Board. We are obliged to affirm decisions of the Board as the ultimate decision-maker on the administrative level, i.e., the agency head under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -24, when they are supported by substantial credible evidence in the record; are not arbitrary, capricious or unreasonable; and promote expressed or implied legislative policies. See Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001).

These standards have not been met by the Board's decision in this matter. That decision reflects, without any factual basis in the record, an acceptance of the employer's reservation of a right to dictate the effective date of claimant's election to retire. At the very least, in order to decide that the employer's choice governed, the Board was obliged to have an understanding of how, generally, the employer had administered its early retirement incentive program in respect of similarly situated employees, so that the Board could make an informed judgment whether the employee had been dealt with reasonably or not, i.e., whether the resignation as of the date the employer selected could be seen, in the circumstances, to have been a reasonable termination of claimant's employment at that time, thereby rendering him ineligible for unemployment compensation benefits. If the employer's choice were deemed unreasonable, it might well be seen, for all intents and purposes, as equivalent to a termination not for cause, thereby rendering the employee eligible for benefits as of the alternate date of termination, the date he chose.

In addressing the matter on the foregoing bases, and remanding for further development and reconsideration, we do not accept claimant's argument that the Appeal Tribunal's final decision in another matter which may or may not have been similar to claimant's necessarily controls the outcome in the instant case. Nevertheless, how the company dealt with other similarly situated employees, or how it was held to have been required to deal with them in a litigated matter, may very well be evidential with respect to the issue of the reasonableness of the employer's choice in this matter.

Clearly, if, upon reconsideration, the Board were to hold that the employer's choice in this instance was unreasonable, the employee's election of a retirement date would govern and he could not be required to return the unemployment benefits already received, dating from his termination at the employer's will. If, however, the Board determines that the employer's choice was reasonable and effective, the Board must still decide whether, in the circumstances, especially given the decision the Appeal Tribunal made, it is equitable to back-charge the employee with the benefits received. See N.J.A.C. 12:17-14.2.

 
Reversed and remanded for reconsideration. We do not retain jurisdiction.

(continued)

(continued)

6

A-0495-05T5

July 24, 2007