DIANA RADICH 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NOT FOR PUBLICATION WITHOUT THE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

DIANA RADICH,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, and CHERRY HILL NISSAN,

INC.,

Respondents.

__________________________________

April 3, 2014

Argued March 5, 2014 Decided

Before Judges Grall and Waugh.

On appeal from the Board of Review, Department of Labor, Docket No. 360,852.

Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Lakshmi Roberta Roy and Arykah A. Trabosh, on the briefs).

Robert M. Strang, 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. Strang, on the brief).

PER CURIAM

Appellant Diana Radich 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 (Department), which denied her application for unemployment benefits and ordered a refund. We vacate the decision on appeal and remand for further consideration.

I.

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

In 2007, Radich was hired as a part-time cashier at respondent Cherry Hill Nissan (dealership). She worked approximately thirty-five hours per week. She began working full time in 2009, when she assumed additional duties, including filing and preparing internet reports.

On August 17, 2011, Radich told the general manager at the dealership that she did not want to continue working full time, but wanted to continue working part time, performing only the additional duties she undertook in 2009. She told him that she would continue working full time until they found a new cashier, but wanted to start part time in October. According to Radich, the general manager told her that part-time work would not be a problem. In September, she was told that the search for a replacement cashier was continuing.

When she reported to work on October 4, she was told that she would not be able to work part time because the dealership had hired someone to work full time and perform all of her duties. As a result, her employment was terminated. Radich contends that she would have continued working full time had she been told that she had to do so or be terminated.

Radich applied for unemployment benefits. There was a fact-finding hearing on November 4. The deputy director made two determinations as a result of the hearing. The first determination was that Radich was eligible for benefits, based on the deputy's finding that, although the dealership had "state[d] that [she] quit [her] job when [she] did not want to be full-time anymore," "evidence indicates that [she was] being kept on at [her] part-time side job until it was decided that they did not need a part-time person." The second determination was that Radich was ineligible for benefits because she was not available for full-time work.

When Radich did not receive notice of the results of the hearing, she went to the local unemployment office to make an inquiry. As a result, the determinations were resent and received by Radich on December 16. The dealership appealed the first determination and Radich appealed the second determination.

The Appeal Tribunal held hearings on March 9 and 19, 2012. On March 20, it determined that, because Radich had not received the deputy director's determinations until they were resent, her appeal was timely. It also affirmed the deputy's findings concerning the circumstances under which Radich's employment was terminated and reversed the deputy's finding that she was not available for work.

The dealership filed an appeal to the Board of Review. According to Radich, she did not receive notice of that appeal and, consequently, did not participate. The Board reversed the Appeal Tribunal and found that Radich was not qualified for benefits. The Department then notified Radich that she was required to refund the $24,518 she had received in benefits. This appeal followed.

II.

On appeal, Radich argues that she was denied due process because she did not receive notice of the dealership's appeal of the Appeal Tribunal's decision and was not given an opportunity to respond to the arguments raised in the appeal, which she argues included factual assertions from a dealership employee who had not testified before the Appeal Tribunal. She also argues that the Board's decision was arbitrary, capricious, and unreasonable because it failed to give appropriate deference to the credibility findings made by the Appeal Tribunal.

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. (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)).

Based upon the record before us, we conclude that Radich was denied basic due process with respect to the dealership's appeal to the Board. Radich demonstrated diligence in pursuing her rights by questioning the delay in her receipt of the deputy director's determinations and then appealing the adverse determination when she received the second mailing. The Appeal Tribunal found that she had not received the first mailing, and we find no basis in the record to reject her assertion that she did not receive notice of the dealership's appeal to the Board. Even if Radich had received the notice, it is deficient because it did not clearly notify her that she had the right to respond or give her a time within which she was required to do so.

Consequently, we vacate the decision on appeal and remand to the Board for further consideration of the dealership's appeal after giving Radich a reasonable opportunity to respond. In the event the Board again concludes that the decision of the Appeal Tribunal was factually inaccurate, it must clearly articulate its reasons for doing so with reference to the appellate record before it.1 We do not retain jurisdiction.

Vacated and remanded.

1 We note that the Board takes the position that it did not rely on the factual assertions contained in the dealership's appeal, but relied only on the appellate record before it. Given our disposition of this appeal, we need not determine whether there was any such reliance. Clearly, however, the Board's reconsideration of the dealership's appeal should be based on the appellate record before it.