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DOCKET NO. A-2169-12T3








ArguedMarch 26, 2014 Decided April25, 2014


Before Judges Waugh and Accurso.


On appeal from the Board of Review, Department of Labor, Docket No. 376,689.


Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Zachary R. Wall, on the briefs).


Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief).



Appellant Jimmy Lin appeals the final administrative decision of the Board of Review (Board) in the Division of Unemployment and Disability Insurance, Department of Labor and Workforce Development, which retroactively denied his application for unemployment benefits and ordered a refund of benefits previously paid to him. We reverse.


We discern the following facts and procedural history from the record on appeal.

Lin began working at Wegmans Food Market in November 2004. He was terminated on August 7, 2011, for violating company policy. Wegmans maintained that Lin was terminated for insubordination because he continued to argue with a coworker.

Lin filed for unemployment benefits on August 14. On February 24, 2012, the deputy director determined that Lin was not eligible for benefits from the date of discharge to October 1, 2011, based upon his discharge for simple misconduct.

Lin appealed to the Appeal Tribunal, arguing that he was not guilty of misconduct. At the beginning of the hearing before the Appeal Tribunal, the hearing examiner advised Lin, through the Mandarin interpreter, that in appealing the deputy director's determination that he was terminated for simple misconduct he risked losing all unemployment benefits in the event the evidentiary hearing resulted in a finding that his termination was based on severe misconduct. Lin elected to continue.

An evidentiary hearing was held on August 8, 2012. One of Wegmans' chefs, Phillip Levinfuss, testified that Lin was arguing with a coworker and shouting at him in Mandarin Chinese. He was getting very close to the coworker and gesturing with his arms. Levinfuss was concerned that the confrontation would become physical and directed Lin several times to stop yelling and walk away, which he did not do until a second chef intervened. According to Levinfuss, Lin and the coworker were arguing about job duties. Levinfuss also testified that Lin had received a written warning in October 2010 for similar conduct. A Wegmans manager testified that Lin's conduct violated its Workplace Threats and Violence Policy.

Lin testified that the coworker was "looking for trouble" and had told him to perform work that was not his responsibility.1 He testified that he was told to go home and wait for a call to return to work. Lin also acknowledged that he had previously received a warning on October 30, 2010, for arguing with the same person.

In a decision dated August 9, 2012, the Appeal Tribunal upheld the deputy director's decision that Lin was disqualified for benefits from the date of his termination to October 1, 2011, because he was discharged for simple misconduct. Lin appealed to the Board. In its December 10 decision, the Board held that the Appeal Tribunal's factual findings were substantially correct, but nevertheless determined that Lin was completely disqualified from receiving benefits because his conduct was "malicious and a repeated violation of the company's policy." As a result, the Board held that Lin engaged in "severe misconduct" requiring disqualification pursuant to N.J.S.A. 43:21-5(b), as well as repayment of the benefits he had received based on the initial decisions of the deputy director and Appeal Tribunal. This appeal followed.


On appeal, Lin argues that the Board's decision should be overturned because he was not given adequate notice that the Board could change the Appeal Tribunal's decision to a more severe penalty, given the fact that the employer had never challenged the finding of either the deputy director or the Appeal Tribunal that Lin was terminated for simple misconduct. He further argues that the Board relied upon facts not adequately supported in the record and that its decision was arbitrary, capricious, and unreasonable.

Our scope of review of an administrative agency action is limited and highly deferential. It is restricted to the following inquiries:

(1) whether the agency's decision offends the State or Federal Constitution;


(2) whether the agency's action violates express or implied legislative policies;


(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and


(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.


[Brady v. Bd. of Review, 152 N.J. 197, 211 (1997) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]


So long as the Board's decision is supported by sufficient credible evidence in the record and was neither "arbitrary, capricious, [nor] unreasonable," it will be affirmed. Id. at 210 (citing In re Warren, 117 N.J. 295, 296 (1989)).

We also review factual findings made by an administrative agency deferentially. On appeal, "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 factfinder could reasonably so conclude upon the proofs." Ibid. (emphasis added) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)) (internal quotation marks omitted). So long as the "factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

In its decision, the Board affirmed the Appeal Tribunal's factual findings, but added the following new finding: "Additionally, the claimant raised his fists in a threatening manner towards the coworker as he was yelling at him." This finding was not made by the Appeal Tribunal, and was implicitly rejected by the examiner, who actually heard and observed the witnesses, because the witness who made the assertion was not present during the underlying incident. The witness testified about Wegmans' policies and Lin's prior disciplinary record. She also testified that, "[d]uring the argument[,] Mr. Lin was yelling and raising his fist at the other employee." When the examiner asked the witness to explain "[w]hat exactly occurred," she responded that she was "not present." The examiner then declined to question her further on that issue because the witness "was not present in the building at the time of the occurrence." The chef only testified that Lin was "swinging his arms" at one point.

In addition, the Board found that Lin's actions were "malicious," but failed to articulate any factual basis for that finding. Neither the deputy director nor the Appeal Tribunal made a finding of malice, nor was there any testimony on which such a finding could reasonably be based. The Appeal Tribunal found that Lin took offense at being directed to clean food waste off of the floor and refused to stop arguing when he was told to do so. While Lin may have been argumentative, there is no evidence in the record that he acted with malice.

Because the Board made findings that were not supported by the record created by the Appeal Tribunal's factfinding hearing and were inconsistent with the Tribunal's findings based on the testimony before it, we conclude that the Board's determination that Lin's actions amounted to severe misconduct was not supported by sufficient credible evidence in the record and was arbitrary, capricious, and unreasonable. Consequently, we reverse the decision on appeal. We find no need to remand for further consideration of the issues raised by Lin in his appeal because there is no basis in the record to overturn the Appeal Tribunal's decision that he was terminated for simple misconduct. That decision is reinstated.



WAUGH J.A.D., concurring.

Although I agree with the result, as well as the reasons articulated in the per curiam opinion, I write separately to express my concern that the Board of Review did not take adequate steps to inform Lin that his appeal could result in a total deprivation of benefits and the requirement that he refund payments already received, despite the fact that Wegmans did not appeal the Appeal Tribunal's decision that he was dismissed for simple misconduct.

Unlike the Appeal Tribunal, the Board did not give Lin notice that it might re-determine issues decided in his favor by the deputy director and the Appeal Tribunal, even though his employer had not challenged those determinations. I do not find at all convincing the Board's argument that the warning he received from the Appeal Tribunal was sufficient for that purpose. The Appeal Tribunal did not notify Lin that he ran the same risk if he appealed to the Board, and Lin could well have assumed that the risk applied only to the results of the Appeal Tribunal's evidentiary hearing.

The notice of appeal rights provided as part of the Appeal Tribunal's decision mentions the fact that, pursuant to N.J.S.A. 43:21-6(e), the Board has the right to "take jurisdiction over any and all issues arising from the Appeal Tribunal decision . . . . " That language, which is far from clear, was in any event in English and Spanish, not Mandarin Chinese. Especially because Lin was risking the possibility that he would lose his benefits going forward and would have to repay those he had already received, the language in the notice was insufficient to apprise Lin of the possible negative consequences of his appeal. See Rivera v. Bd. of Review, 127 N.J. 578, 588-90 (1992).

There is also an issue as to whether the Board had the authority to conduct a sua sponte review of an issue not appealed to it without exercising that authority within ten days after the mailing of the Appeal Tribunal's decision. N.J.S.A. 43:21-6(c). As we held in Von Ouhl v. Board of Review, 254 N.J. Super. 147, 151-52 (App. Div.), certif. denied, 130 N.J. 10 (1992),

N.J.S.A. 43:21-6(c) provides that a decision of an Appeal Tribunal "shall be deemed to be the final decision of the board of review, unless within 10 days after the date of notification or mailing of such decision, further appeal is initiated pursuant to subsection (e) of this section." N.J.S.A. 43:21-6(e) authorizes appeals to the Board of Review by interested parties and further provides that the Board "may on its own motion affirm, modify or set aside any decision of an appeal tribunal." These statutory provisions are implemented by N.J.A.C. 12:20-4.3(a), which provides that "[n]otice of appeal shall be filed within ten calendar days after the date of notification or mailing of the decision which is being appealed" and N.J.A.C. 12:20-4.5(a), which provides that "[w]ithin the legal time limit for appeal following a decision by an appeal tribunal and in the absence of the filing by any of the parties to the decision of the appeal tribunal of a notice of appeal, the Board of Review, on its own motion, may withdraw such decision to itself."[2] When the Board of Review decides to review a decision of an Appeal Tribunal, it must act within the ten day period provided by N.J.S.A. 43:21-6(c). Kaske v. State of N.J., Bd. of Review, 34 N.J. Super. 222, 225-26 (App. Div. 1955). If a review of an Appeal Tribunal's decision is not initiated by either an interested party or the Board of Review within the ten day period, the decision becomes "final" and is not subject to review except upon a showing of fraud or other fundamental defect in the proceedings. Ibid.


. . . .


There is nothing in the enabling legislation governing the Board of Review or its implementing regulations which indicates that an appeal of one part of an Appeal Tribunal's decision automatically subjects every other part of the decision to the Board's review."


While the Board certainly has a duty to protect the integrity of the unemployment compensation fund from the payment of ineligible claims, Heulitt v. Bd. of Review, 300 N.J. Super. 407, 412 (App. Div. 1997), the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, is nevertheless remedial legislation entitled to a liberal construction, Carpet Remnant Warehouse, Inc. v. N.J. Dep't of Labor, 125 N.J. 567, 581 (1991). Applicants such as Lin, who also contribute to the fund, are entitled to be treated fairly by the Board.

Although Lin was, in many ways, the author of his own difficulties, my review of the record suggests that he was not dealt with fairly by the Board for the reasons set forth above.







1 Lin testified with the assistance of a Mandarin interpreter. In his brief, he disagrees with some of the interpreter's translation. We rely on that transcript on appeal because Lin failed to raise the issue of the accuracy of the translation with expert opinion before the Board.

2 The cited regulations have been changed, but there is no regulation authorizing a sua sponte review of unappealed issues absent action by the Board within the ten-day period.

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