FREDDIE MITCHELL VS. BOROUGH OF ROSELAND POLICEDEPARTMENT (L-8140-14, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0346-15T2
JOHN F. SCINTO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF
LABOR and IBM CORP.,

Respondents.

___________________________________

Submitted March 22, 2017 – Decided April 5, 2017

Before Judges Accurso and Lisa.

On appeal from the Board of Review, Department
of Labor, Docket Nos. 00033594 and 00039868.1

John F. Scinto, appellant pro se.

Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Adam Verone, Deputy
Attorney General, on the brief).

Respondent IBM, Corp. has not filed a brief.

1
The Notice of Appeal referenced the final decision under Docket
No. 00039868. Subsequent to filing the appeal, this court, by
order of November 16, 2015, granted appellant's motion to consider
the two separate but related final decisions of the Board of Review
in one appeal. (Motion No. M-001639-15).
PER CURIAM

Appellant, John F. Scinto, appeals two final decisions of the

Board of Review (Board), both issued on June 26, 2015. The

controlling substantive decision, under Docket No. 00033594,

determined that appellant was ineligible for benefits for a two-

week period during which he was on a voluntary vacation out of the

country, as a result of which he was found liable to refund the

sum of $1272 he had received in benefits for those weeks.

The other decision, under Docket No. 00039868, resulted from

appellant's administrative appeal to the Appeal Tribunal

(Tribunal) regarding the same two weeks of ineligibility, which

he filed subsequent to the issuance of the Tribunal decision under

Docket No. 00033594. The subsequent Tribunal concluded that

appellant should be disqualified for benefits for only one of the

two weeks and should be liable for a refund of only $636.

When both matters came before the Board, it upheld the

Tribunal's decision under Docket No. 00033594, finding a two-week

ineligibility period and ordering a $1272 refund. At the same

time, the Board issued its final decision under Docket No.

00039868, in which it held that, because the matter was previously

addressed by another Tribunal, the decision of a subsequent

Tribunal involving the identical subject matter was a nullity and

ordered it set aside.

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 Appellant argues that, under the circumstances of this case,

the fact that he was out of the country on a voluntary vacation

for portions of two calendar weeks did not render him unavailable

for work during that time, as a result of which he should not have

been disqualified for benefits. We reject appellant's argument

and affirm.

On March 31, 2014, at age sixty-five, appellant was laid off

from his position as a managing consultant at IBM, where he was

earning about $120,000 per year. His application for benefits was

approved and he began receiving $636 per week. He also commenced

a nationwide search for a comparable position, sending out, over

a period of time, about seventy-five hard-copy resumes. He had

received no responses indicating an interest in talking to him by

phone or scheduling an in-person interview prior to going on the

vacation that is implicated in this case.

In 2012, appellant and his wife began planning a thirty-fifth

anniversary vacation to take place in 2014. They scheduled their

trip to Mexico, and, in accordance with the plans they had made,

left for Mexico on Friday, August 1, 2014 and returned on Friday,

August 8, 2014. When appellant electronically certified for his

benefits on August 3, 2014, the IP address of the computer

reflected the Mexico address as the source, which triggered the

resulting disqualification.

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 Appellant insists that he was available to continue pursuing

suitable employment while in Mexico by way of electronic or

telephonic communication. In his circumstances, the anticipated

procedure would be that if a prospective employer was interested

in his services after reviewing his resume, the employer would

contact him and probably conduct a telephonic screening. Then,

if still interested, a second interview would be scheduled, which

could be either in person or by telephone. By this analysis,

appellant insists he was continuing his pursuit of new employment

and was available during the eight days he was in Mexico.

When asked at the Tribunal hearing under Docket No. 00033594

whether he considered himself available for work during those

weeks, appellant responded that he did not know how to answer,

except to say he was available to receive calls from employers

regarding scheduling of interviews. Appellant was asked further

whether, if he received a call while in Mexico from a prospective

employer who wanted him to come in for an immediate interview, he

would have been able to comply. He insisted that if that were

necessary and if it were expressed to him that failure to do so

would result in him being eliminated from consideration for the

position, he would have gone to the airport and was confident he

could arrange an immediate flight. Likewise, he insisted that in

the unlikely event he were offered a position while in Mexico, but

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was required to start work immediately, he would have been able

to do so.

The appeals examiner did not agree. First, she made the

following factual finding:

[T]he claimant was on a prearranged vacation
during which he did not conduct an active
search for work. Despite his assertion he
could have arranged a flight back to the
States if necessary, there are any number of
factors which could have precluded him from
being able to travel back immediately. The
claimant does not demonstrate he was able and
available for work while on vacation . . . .

The appeals examiner then referenced and applied the relevant

statutory provisions. An unemployed individual is eligible to

receive benefits with respect to any week if he or she "is able

to work, and is available for work, and has demonstrated to be

actively seeking work." N.J.S.A. 43:21-4(c)(1). For these

purposes, a "week" means a "calendar week ending at midnight

Saturday, or as the division may by regulation prescribe."

N.J.S.A. 43:21-19(q). Applying these provisions to her factual

findings, the appeals examiner concluded that appellant failed to

meet the eligibility requirement for each of the two weeks because

"there were less than seven (7) eligible days during [each of]

these calendar weeks, in accordance with N.J.S.A. 43:21-4(c)[(1)]

and N.J.S.A. 43:21-19(q)."

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 The Board, based upon its review of the record, expressed its

agreement with the decision reached by the Appeal Tribunal and

affirmed that decision. As we previously stated, at the same

time, the Board declared the subsequent Tribunal proceeding a

nullity because the same matter had already been decided by a

previous Tribunal.

The scope of our review of the final decision of an

administrative agency is very limited. Brady v. Bd. of Review,

152 N.J. 197, 210 (1997). We will not interfere with the Board's

decision unless it is arbitrary, capricious, or unreasonable, or

is not supported by substantial credible evidence in the record

as a whole. Id. at 210.

The Board's factual finding that, during his Mexico vacation,

appellant was not actively seeking work and would not have been

able to immediately report for work or even for an in-person

interview is supported by the record evidence. Essentially, while

enjoying his vacation, appellant was basically monitoring his cell

phone for any phone calls or electronic communications from

prospective employers. There is nothing arbitrary or unreasonable

in the determination that this conduct did not satisfy N.J.S.A.

43:21-4(c)(1).

The statutory and regulatory scheme makes it clear that an

individual voluntarily on vacation (as opposed to a required

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vacation through a collective action or collective bargaining

agreement beyond the individual's control) is not deemed available

for work. See N.J.S.A. 43:21-4(c)(3). By regulation, "[a]n

individual who voluntarily takes a vacation is ineligible for

benefits as the individual is unavailable for work." N.J.A.C.

12:17-8.10(a).

In defining a "week" as a calendar week ending at midnight

Saturday, the Legislature allowed, as an alternative, that "the

division may by regulation prescribe" otherwise. N.J.S.A. 43:21-

19(q). No such regulation has been adopted, and we have no

occasion to judicially override the legislative and regulatory

determinations made in defining a "week" for purposes of

unemployment benefits to allow some flexible approach as urged by

appellant.

The Unemployment Compensation Law is designed to provide

workers who find themselves out of work through no fault of their

own with some limited income. Yardville Supply Co. v. Bd. of

Review, 114 N.J. 371, 375 (1989). And, the law is designed to

serve the public interest as well by creating and preserving a

fund out of which benefits can be paid. See Brady, supra, 152

N.J. at 212. Strict adherence to the statutory and regulatory

provisions for payment of benefits serves the public purpose of

preserving the fund for the benefit of all workers who may be

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dislocated from their employment through no fault of their own.

Depleting the fund to provide an unemployed person with a paid

vacation would not advance this public purpose.

Finally, appellant does not dispute that, if his

disqualification from benefits is upheld, he is required to refund

the benefits mistakenly paid to him during the weeks of

disqualification. Nor does he make any argument contesting the

Board's determination that the action resulting from the

subsequent administrative appeal should be declared a nullity and

set aside. These points are clear and require no discussion on

our part. R. 2:11-3(e)(1)(E).

Affirmed.

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