ANGEL M. MEJIAS 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NOT FOR PUBLICATION WITHOUT THE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

ANGEL M. MEJIAS,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, GUYS MAINTENANCE

CO., INC. and ATLAS BOLT &

SCREW COMPANY,

Respondents.

__________________________

Before Judges Fuentes and Simonelli.

On appeal from the Board of Review, Department of Labor, Docket No. 355,142.

William Pollack argued the cause for appellant.

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

Respondents Guys Maintenance Co., Inc. and Atlas Bolt & Screw Company have not filed briefs.

PER CURIAM

Appellant Angel M. Mejias appeals from the final decision of the Board of Review (Board), which affirmed the decision of the Appeal Tribunal that he must refund $17,997 in unemployment benefits pursuant to N.J.S.A. 43:21-16(d) for the weeks ending November 22, 2008 through June 26, 2010. We reverse and remand to the Board to determine, based on credible evidence, the amount of benefits, if any, the Division of Unemployment Insurance (Division) overpaid to appellant.

Appellant was employed full-time by Atlas Bolt & Screw Company and part-time by Guys Maintenance Co., Inc. On November 16, 2008, he filed a claim for unemployment compensation benefits with respect to the loss of his full-time employment. He reported his part-time income when he filed the claim.

Appellant claimed he had received a weekly benefit rate of $247 for the weeks ending November 22, 2008 through June 26, 2010.1 The Department of Labor and Workforce Development (Department) determined that appellant received a weekly benefit of $477 for the weeks ending November 22, 2008 through June 5, 2010, and $105 for the weeks ending June 12, 2010 to June 26, 2010. The Department concluded that appellant was overpaid $182 per week for the weeks ending November 22, 2008 through September 26, 2009 and October 10, 2009 through November 14, 2009 (fifty-one weeks),2 and $126 per week for the weeks ending November 21, 2009 through June 26, 2010, except for the week of June 5, 2010, where appellant was overpaid $41. The Department notified appellant that he must refund $13,229, and provided a calculation.

The Division also determined, without explanation, that appellant received a weekly benefit of $477 and that appellant was only entitled to $325 per week for the weeks ending November 22, 2008 through November 14, 2009, and $378 per week for the weeks ending November 21, 2009 through June 26, 2010. Thus, the Appeal Tribunal concluded that appellant must refund $17,997 for the weeks ending November 22, 2008 through June 26, 2010. It is from this determination that appellant appeals.

The Appeal Tribunal's and Board's decisions "must be supported by sufficiently substantial and legally competent evidence to provide assurance of reliability and to avoid the fact or appearance of arbitrariness." N.J.A.C. 1:12-15.1(b). The record in this case does not support the Appeal Tribunal's or Board's decisions. The Appeals Tribunal and Board provided no explanation and pointed to no credible evidence showing what weekly benefit appellant was actually paid, what amount he should have been paid, and how much he was overpaid. The Board must do so on remand.

Accordingly, we reverse and remand to the Board for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 This figure appears to be incorrect. Appellant's W-2 forms for 2009 and 2010 indicate that he received after-tax unemployment compensation benefits of $13,671 in 2009, and $11,130 in 2010, for a total of $24,801. Thus, the average weekly benefit was $295.25 for the weeks ending November 22, 2008 through June 26, 2010.

2 For unknown reasons, the Department omitted the week of October 3, 2009.