SHIRLEY H. WILSON HOLDEN 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NOT FOR PUBLICATION WITHOUT THE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-0

SHIRLEY H. WILSON HOLDEN,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

and JCP&L FIRST

ENERGY,

Respondents.

___________________________________________

October 4, 2013

Submitted June 11, 2013 Decided

Before Judges Parrillo and Messano.

On appeal from the Board of Review, Department of Labor, Docket No. 120,360.

Shirley H. Wilson Holden, appellant, pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, of counsel and on the brief).

Respondent JCP&L First Energy has not filed a brief.

PER CURIAM

Shirley H. Wilson Holden appeals from the final decision of the Board of Review (the Board) dated March 21, 2011, affirming the decision of the Appeals Tribunal (the Tribunal) that ordered repayment of unemployment benefits in the amount of $3184, which Holden received for the weeks ending December 11, 2004 through January 22, 2005. After the appeal was filed, we granted the Board's motion for remand. A telephonic hearing was conducted on August 31, 2012, after which, on September 14, 2012 (the September 2012 decision), the Board re-affirmed its prior decision requiring repayment.

The record reveals that at all relevant times, Holden was an employee of Jersey Central Power and Light (JCP&L). As to the background of the labor dispute at issue, the general history of which is undisputed, we quote from the September 2012 decision.

On December 8, 2004, approximately 1300 members of the International Brotherhood of Electrical Workers union (IBEW) struck the employer . . . . The strike ended on March 16, 2005 and the union workers returned to their jobs.

The striking workers filed unemployment claims and sought to collect benefits. The Division denied benefits under the labor dispute section of the law.1 On appeal by the union, the . . . Tribunal held that there was no work stoppage and that the claimants were eligible for benefits, leading to the payment of benefits to the claimants, including [Holden] . . . .

JCP&L appealed, and the Board "issued the first of its three decisions in the matter[,]" concluding there "existed a work stoppage" and "the claimants were disqualified for benefits from December 8, 2004 through March 15, 2005 . . . ." The IBEW appealed.

In a reported opinion, we affirmed the Board's finding of a work stoppage, but we remanded for further consideration of the "newly[-]enacted" anti-lockout provision, N.J.S.A. 43:21-5(d)(2).2 Bustard v. Bd. of Review, 401 N.J. Super. 383, 390 (App. Div. 2008). The Board then issued its second decision, "rejecting the argument made by the union that the labor dispute was a lockout."

The IBEW again appealed, and we again remanded the matter to the Board for consideration of the relevance, if any, of the Supreme Court's then-recent decision in Lourdes Medical Center v. Board of Review, 197 N.J. 339 (2009). Bustard v. Bd. of Review, No. A-3831-08 (App. Div. June 17, 2010) (slip op. at 5). On August 6, 2010, the Board issued its third decision, again concluding that the claimants were disqualified.3

Meanwhile, in September 2009, Holden had written to the Board seeking an independent review of her particular case. On February 5, 2010, following a telephonic hearing, the Tribunal denied her request, citing to a prior decision of "unknown date" that concluded Holden was ineligible for benefits because she was "involved in a labor dispute." On August 6, 2010, the Board remanded the matter to the Tribunal because of audibility problems with the hearing.

Another telephonic hearing was conducted, and, on September 10, 2010, the Tribunal again denied Holden's appeal, concluding that she sought "review of her inclusion in the class of claimants disqualified under the mass decision," and the Tribunal did "not have jurisdiction to redefine the class of claimants . . . ." The Tribunal concluded Holden "would need to seek review of her inclusion [in the class of claimants] . . . under the appropriate appeal procedures for that decision." Holden again appealed to the Board. In its final decision of March 21, 2011, the Board concluded that, since Holden "was given a full and impartial hearing and a complete opportunity to offer any and all evidence, there [was] no valid ground for a further hearing." Holden filed this appeal.

As noted, at the Board's request we remanded the matter so the Board could consider Holden's "argument that she did not voluntarily participate in the work stoppage." Telephonic argument was again conducted on August 31, 2012.

As set forth in the September 2012 decision, the Board found the following facts:

[Holden] worked for [JCP&L] . . . in the customer accounts department, starting [o]n February 5, 1995. The department was a union shop. She and her co-workers were members of the [IBEW] . . . . On February 8, 2004 [sic], she stopped working along with her co-workers, when the union went on strike.

[Holden] opposed the strike. For this reason, she wrote to the union on January 17, 2005 announcing that she was resigning from the union as of January 21, 2005 and requesting that she no longer be liable for union dues except for those she termed for "representation." While the strike continued until March 16, 2005, [Holden] ignored the union pickets and returned to work on January 24, 2005.

. . . .

While no longer a union member, [Holden] continues to pay union dues, though at a substantially reduced rate.

The Board reasoned that Holden would be eligible for benefits if she was "not participating in or financing or directly interested in the labor dispute which caused the stoppage of work." N.J.S.A. 43:21-5(d)(1)(a) and (b). The Board noted, "[a]s to . . . participation, [Holden's] situation was ambiguous[,]" because although "she opposed the strike and attempted to relinquish her union membership[,] . . . she performed no services for the employer for the period in dispute and remained a union member for most of the time she received benefits."

However, the Board determined that "[i]nsofar as the matter of financing the strike, no ambiguity exists." The Board found that Holden "supported the union by paying dues, and continued these payments even after she ended her union membership." Thus, the Board concluded that Holden "helped finance the strike." Additionally, the Board determined that Holden "was directly interested in the strike[,]" since the dispute "affected wages and general working conditions[,]" and "[a]ny change would have had an impact on her in the same way as any other worker."

Before us, Holden argues that the Board erred in determining she was disqualified from receiving benefits pursuant to N.J.S.A. 43:21-5(d)(1) because she did not participate in, was not interested in, and did not finance the strike. She also argues that she should not be required to repay benefits she received after her claim was denied and through March 2005. Having considered her arguments in light of the record and applicable legal standards, we affirm.

Our review of final agency action is quite limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citation omitted). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999) (citations omitted). Furthermore, the Board's "interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). Only if the Board's "action was arbitrary, capricious, or unreasonable" should it be disturbed. Brady, supra, 152 N.J. at 210.

Pursuant to N.J.S.A. 43:21-5(d)(1), an applicant is ineligible for benefits if the "unemployment is due to a stoppage of work which exists because of a labor dispute at the . . . premises at which the individual . . . was last employed." The disqualification, however, does not apply if:

(a) The individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and

(b) The individual does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided that if in any case in which (a) or (b) above applies, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment, or other premises.

[Ibid. (emphasis added).]

We have said,

To be relieved from the disqualification contained in subsection (d) [a claimant] must prove all of the conditions set forth in (1) and (2) thereof, namely, (a) that she did not participate in the labor dispute; (b) that she did not finance the dispute; (c) that she was not directly interested therein, and (d) that she did not belong to a grade or class of workers at the plant, any of whom were participating in or financing or directly interested in the dispute.

[Wasyluk v. Mack Mfg. Corp., 4 N.J. Super. 559 at 561-62 (App. Div. 1949) (citation omitted).]

"Whether claimant's contribution was small or large is not the test for disqualification under N.J.S.A. 43:21-5(d). . . . Any financing of a labor dispute disqualifies a claimant from receiving unemployment benefits." Burgoon v. Bd. of Review, 100 N.J. Super. 569, 579-80 (App. Div.) (quotation marks and citation omitted), certif. denied, 52 N.J. 168 (1968).

Initially, despite Holden's arguments to the contrary, the factual determinations reached by the Board are "supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). In large part, Holden's complaints focus on the conduct of the IBEW; she asserts, for example, that "[i]n this type of union you are just a body with no say." And, while she was unsympathetic to the union and its strike, her assertions do not undermine the critical factual determinations made by the Board.

Moreover, as to Holden's assertion that the strike involved issues affecting other union employees such as "[l]inemen and [m]eter [r]eaders" and not her, we note that in Burgoon, supra, 100 N.J. at 575, we found a commonality of "direct interest[]" in a strike where the claimants performed entirely different tasks at the factory and were members of a different local from the one on strike, even though both belonged to the same international union. Moreover, there is nothing in the record that undermines the Board's finding that IBEW was negotiating a collective bargaining agreement that affected the conditions and wages of all of its members. See Basso v. News Syndicate Co., Inc., 90 N.J. Super. 150, 167 (App. Div. 1966) (citations omitted) ("A member of a union is directly interested and involved in a labor dispute conducted by his union in his behalf.").

We must also reject Holden's contention that, because she never paid into a designated strike fund and otherwise disclaimed interest in the strike, she did not "finance" the strike through her dues. In Burgoon, supra, 100 N.J. at 579-80 we held that even though two different locals were involved, because the dues paid by the claimants to their local were shared with the common international union and supported its strike fund, the claimants financed the strike of their sister local and were ineligible for benefits pursuant to N.J.S.A. 43:21-5(d).

Holden's claim regarding the amount of repayment ordered lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). See Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973) (holding that claimant was required to refund erroneously paid unemployment benefits even though she applied for them in good faith).

1 N.J.S.A. 43:21-5(d), which we discuss in further detail below.

2 That section, enacted on June 27, 2005 and made effective sixty days later, provides:

For any claim for a period of unemployment commencing on or after December 1, 2004, no disqualification . . . shall apply if it is shown that the individual has been prevented from working by the employer, even though[:]

[a] The individual's recognized or certified majority representative has directed the employees in the individual's collective bargaining unit to work under the preexisting terms and conditions of employment, and

[b] [t]he employees had not engaged in a strike immediately before being prevented from working.

[N.J.S.A. 43-21-5(d)(2).]

3 The Board's decision was not appealed by the IBEW.