JEFF RANDALL VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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-5697-16T4

JEFF RANDALL,

Appellant,

v.

BOARD OF REVIEW and
D&C TIRE PROS, INC.,

Respondents.
_________________________________

Submitted July 24, 2018 – Decided August 15, 2018

Before Judges Ostrer and Vernoia.

On appeal from the Board of Review, Department
of Labor, Docket No. 113,578.

Jeff Randall, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney
for respondent Board of Review (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Jessica M. Saxon, Deputy Attorney
General, on the brief).

Respondent D&C Tire Pros, Inc. has not filed
a brief.

PER CURIAM

Claimant Jeff Randall appeals from a July 28, 2017 Board of
Review final decision affirming Appeal Tribunal (Tribunal)

decisions dismissing his appeal from a disqualification from

unemployment compensation benefits and denying his request to

vacate the dismissal. We vacate the Board's final decision, and

remand for a determination of whether claimant's appeal should be

reinstated under N.J.A.C. 1:12-14.4(b).

In January 2017, claimant filed an application for

unemployment benefits. The Deputy Director found claimant was

disqualified from receiving benefits between January 22, 2017 and

March 18, 2017, because he was discharged from employment with D&C

Tire Pros, Inc. for simple misconduct connected with the work.1

Following his appeal of the determination, claimant received

a "Notice of Phone Hearing" scheduling a telephonic hearing before

Appeal Tribunal Hearing Examiner William Scaglione at 9:00 a.m.

on April 6, 2017. The notice also stated that:

Unlike the Unemployment fact-finding
interview, the Office of Benefit Appeals WILL
NOT INITIATE A CALL TO YOU UNLESS YOU HAVE
REGISTERED FOR THE HEARING AS INSTRUCTED
ABOVE. So, please remember to REGISTER NO
LATER THAN 3:00 P.M., EST, ON THE BUSINESS DAY
PRIOR TO YOUR SCHEDULED HEARING BEFORE THE
APPEAL TRIBUNAL.

Your appeal may be dismissed or you may be
denied participation in the hearing if you
fail, without good cause, to follow the
instructions contained in this notice.

1
D&C Tire Pros, Inc. did not participate in this appeal.

2 A-5697-16T4
Claimant received the notice, and sent a letter to the Hearing

Examiner addressing the merits of his unemployment compensation

claim and stating he would "speak with [the Hearing Examiner] on

April 6th." Claimant did not, however, call and register for the

hearing as the notice directed.

As a result of claimant's failure to call and register, no

hearing was conducted. In a decision mailed on April 7, 2017, the

Tribunal dismissed the appeal because claimant failed to register

and appear for the hearing. The Tribunal determined that "[t]he

reason provided by . . . claimant" – that "he failed to thoroughly

read the notice and note the established deadline for registration"

– "does not constitute good cause for his failure to register for

the hearing as instructed."

On April 12, 2017, claimant submitted a written request for

a new hearing. He asserted that he sent a letter confirming he

would speak to the Hearing Examiner at the hearing, made a mistake

by failing to register, and was available and waiting for a phone

call for the hearing at the scheduled time. He stated that when

he did not receive the phone call, he called but the appeal was

dismissed. He further argued he was disqualified for benefits

based on his former employer's false allegation he was discharged

for misconduct. He requested that the Tribunal "reopen its

3 A-5697-16T4
[d]ecision" and grant another hearing.

The Tribunal issued an April 26, 2017 order denying claimant's

request. The Tribunal determined claimant failed to demonstrate

good cause for his failure "to participate in the duly scheduled

hearing on" April 6, 2017. Claimant appealed to the Board.

In its final decision, the Board determined claimant failed

to participate in the scheduled Tribunal hearing, and did not

demonstrate good cause for his failure to do so. The Board also

concluded the Tribunal did not abuse its discretion by denying

claimant's request to reopen the hearing, and affirmed the

Tribunal's decisions dismissing claimant's appeal and denying his

request for another hearing. This appeal followed.

On appeal, claimant argues:

[POINT I]

[CLAIMANT] SHOULD NOT HAVE BEEN DENIED
BENEFITS INITIALLY BECAUSE OF LIES TOLD BY
[HIS] FORMER EMPLOYER . . . AND THEN SHOULD
NOT HAVE BEEN DENIED . . . APPEAL BECAUSE OF
ONE SIMPLE ERROR ON THE [CLAIMANT'S] PART
HAVING NOT MADE THE CALL TO REGISTER . . . .
ALL OTHER INSTRUCTIONS HAVE BEEN FOLLOWED AND
THE [CLAIMANT] SHOULD RECEIVE THE UNEMPLOYMENT
BENEFITS FOR THE SHORT TIME UNEMPLOYED
. . . .

In an appeal from an order of the Board denying unemployment

compensation, our review "is limited to determining whether the

agency acted arbitrarily, capriciously, or unreasonably." Lourdes

4 A-5697-16T4
Med. Ctr. of Burlington Cty. v. Bd. of Review, 197 N.J. 339, 360

(2009); accord Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

To determine whether an agency's decision is arbitrary, capricious

or unreasonable, we consider the following "key determinations:"

(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
its action; and (3) 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.

[Circus Liquors, Inc. v. Governing Body of
Middletown Twp., 199 N.J. 1, 10 (2009)
(quoting Mazza v. Bd. of Trs., 143 N.J. 22,
25 (1995)).]

The Board first determined claimant's appeal was properly

dismissed because he did not establish good cause for his failure

to register for, and appear at, the Tribunal hearing. Dismissal

of an appeal for nonappearance of a claimant is expressly

authorized by N.J.A.C. 1:12-14.4(a), which provides that "[i]f the

appellant fails to appear for a hearing before an appeal tribunal,

the appeal tribunal may proceed to make its decision on the record

or may dismiss the appeal on the ground of nonappearance unless

5 A-5697-16T4
it appears that there is good cause2 for adjournment."3

The record shows claimant received notice of the hearing, was

advised of the registration requirements for his participation and

failed to comply with those requirements. He presented no evidence

there was good cause for his failures. He claims only that he

made a mistake, but offers no cause for it. Based on that record,

2
The regulations do not expressly define what constitutes "good
cause" under N.J.A.C. 1:12-14.4(a). In a related context, however,
the regulations define "good cause" for permitting the filing of
a late appeal from a denial of unemployment compensation benefits.
N.J.A.C. 12:20-3.1(i) provides:

A late appeal shall be considered on its
merits if it is determined that the appeal was
delayed for good cause. Good cause exists in
circumstances where it is shown that:

1. The delay in filing the appeal was due to
circumstances beyond the control of the
appellant; or

2. The appellant delayed filing the appeal for
circumstances which could not have been
reasonably foreseen or prevented.

Claimant makes no showing his failure to register for the
hearing was due to circumstances beyond his control or "which
could not have been reasonably foreseen or prevented." N.J.A.C.
12:20-3.1(i)(2).
3
The plain language of N.J.A.C. 1:12-14.4(a) does not limit its
application to a circumstance where a claimant requests an
adjournment in advance of a hearing. The regulation also applies
where, as here, a claimant "fails to appear for a hearing before
an appeal tribunal," and the Board is required to determine if
there is "good cause" excusing the nonappearance and precluding
"dismiss[al of] the appeal on the ground of nonappearance."

6 A-5697-16T4
there is no basis to conclude the Board's finding that claimant's

apparent lack of diligence and attention does not establish good

cause for an adjournment is arbitrary, capricious or unreasonable.

Thus, the Board's decision was supported by the evidence,

consistent with N.J.A.C. 1:12-14.4(a), and reasonably made based

on the relevant factors. See Circus Liquors, Inc., 199 N.J. at

10.

The Board erred as a matter of law, however, in its

determination that claimant's failure to establish good cause for

an adjournment under N.J.A.C. 1:12-14.4(a) required rejection of

claimant's request for the reopening of the Tribunal hearing.

Where an appeal is dismissed due to nonappearance pursuant to

N.J.A.C. 1:12-14.4(a), a claimant is entitled to have the dismissal

"set aside" if he or she satisfies the requirements of N.J.A.C.

1:12-14.4(b). The regulation, which is not cited by the Tribunal

or the Board in their respective decisions, or by the Board in its

brief on appeal, provides:

(b) If an appeal tribunal issued an order of
dismissal for nonappearance of the appellant,
the chief appeals examiner shall, upon
application made by such appellant, within six
months after the making of such order of
dismissal, and for good cause shown, set aside
the order of dismissal and shall reschedule
such appeal for hearing in the usual manner.
An application to reopen an appeal made more
than six months after the making of such order
of dismissal may be granted at the discretion

7 A-5697-16T4
 of the chief appeals examiner.

[N.J.A.C. 1:12-14.4(b).]

The regulation provides relief for a claimant whose appeal

is dismissed due to nonappearance and failure to demonstrate good

cause for adjournment under N.J.A.C. 1:12-14.4(a). Relief under

the regulation is mandatory where a claimant makes the required

showing of good cause. See N.J.A.C. 1:12-14.4(b) (providing that

the dismissal "shall . . . for good cause shown . . . be set aside

. . . .").

Whether good cause exists under N.J.A.C. 1:12-14.4(b) to set

aside a dismissal for nonappearance entered pursuant to N.J.A.C.

1:12-14.4(a) requires an assessment wholly different than that

required for a determination of good cause for an adjournment

under N.J.A.C. 1:12-14.4(a) in the first instance. If the good

cause standards were the same, a claimant against whom a dismissal

was ordered pursuant to N.J.A.C. 1:12-14.4(a) could never have it

set aside under N.J.A.C. 1:12-14.4(b) because the absence of good

cause permitting dismissal of the appeal under N.J.A.C. 1:12-

14.4(a) would necessarily preclude relief from a dismissal under

N.J.A.C. 1:12-14.4(b). "We interpret a regulation in the same

manner that we would interpret a statute," U.S. Bank, N.A. v.

Hough, 210 N.J. 187, 199 (2012), and will not adopt an

interpretation "so as to produce an unreasonable or absurd result,"

8 A-5697-16T4
In re Application of Boardwalk Regency Corp. for Casino License,

180 N.J. Super. 324, 345 (App. Div. 1981).

Although not characterized as such, claimant's request for a

reopening of the hearing constituted a request to vacate the

dismissal and grant a new hearing pursuant to N.J.A.C. 1:12-

14.4(b). In its denial of claimant's request, however, the

Tribunal4 and Board rejected the request because claimant failed

to demonstrate good cause for an adjournment under N.J.A.C. 1:12-

14.4(a). Although we generally defer to an agency's interpretation

of a regulation within its sphere of authority, we owe no deference

where, as here, the Board relied on an interpretation of the good

cause standard under N.J.A.C. 1:12-14.4(b) that is "plainly

unreasonable." Hough, 210 N.J. at 200 (citation omitted).

The appropriate inquiry for the Tribunal and Board in their

consideration of claimant's request for a new hearing was whether

there was good cause to vacate the dismissal under N.J.A.C. 1:12-

14.4(b). The regulation does not define good cause but, in an

analogous context, we have observed that "'[g]ood cause' is an

amorphous term, that is, it 'is difficult of precise delineation.

4
N.J.A.C. 1:12-14.4(b) requires that the chief appeals examiner
decide whether to set aside a dismissal made pursuant to N.J.A.C.
1:12-14-4(a). The record presented is unclear whether the chief
appeals examiner considered and decided respondent's request. On
remand, the chief appeals examiner shall consider and decide the
request in the first instance.

9 A-5697-16T4
Its application requires the exercise of sound discretion in light

of the facts and circumstances of the particular case considered

in the context of the purposes of the [rule] being applied.'"

Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007)

(quoting Delaware Valley Wholesale Florist, Inc. v. Addalia, 349

N.J. Super. 228, 232 (App. Div. 2002)) (interpreting Rule 1:13-

7(a), which permits reinstatement of a civil complaint dismissed

for lack of prosecution upon a showing of "good cause").5

5
To determine whether there is good cause for reinstatement of
a civil complaint under Rule 1:13-7(a), we consider the fault of
the plaintiff, whether there was prejudice to the defendant, the
length of the delay in moving for reinstatement and the policy
underlying the reinstatement rule. See, e.g., Giannakopoulos v.
Mid State Mall, 438 N.J. Super. 595, 608-09 (App. Div. 2014);
Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 384-85 (App.
Div. 2011); Weber v. Mayan Palace Hotel, 397 N.J. Super. 257, 264
(App. Div. 2007); Ghandi, 390 N.J. Super. at 197-98. We offer no
opinion whether the same considerations should govern the Board's
interpretation of N.J.A.C. 1:12-14.4(b)'s good cause standard, but
observe that although the dismissal was claimant's fault, he
forwarded materials in support of his claim in advance of the
hearing, advised he would discuss the matter with the Hearing
Examiner at the scheduled hearing and his failure to make the
registration call was the result of a mistake. Moreover, claimant
immediately filed his request to vacate the dismissal and the
record is devoid of any evidence the Board or claimant's employer
would have been prejudiced if the dismissal order was vacated.
Last, N.J.A.C. 1:12-14.4(b) permits reinstatement of a claim
dismissed due to nonappearance and, therefore, such dismissals are
without prejudice. N.J.A.C. 1:12-14.4(b)'s mandate that such
dismissals shall be vacated where good cause is shown is consistent
with the policy underlying New Jersey's Unemployment Compensation
Law, N.J.S.A. 43:21-1 to -56 (the Act): to "provide some income
for the worker earning nothing, because he is out of work through
no fault or act of his own." Brady, 152 N.J. at 212 (quoting

10 A-5697-16T4
 In any event, the Appeal Tribunal and Board mistakenly applied

N.J.A.C. 1:12-14.4(a)'s good cause standard in its determination

of good cause under N.J.A.C. 1:12-14.4(b), and therefore did not

consider or interpret the applicable good cause standard, or apply

it to claimant's request to vacate the dismissal order.6 We defer

to an agency's interpretation of its regulations "because 'a state

agency brings experience and specialized knowledge to its task of

administering and regulating a legislative enactment within its

field of expertise.'" Hough, 210 N.J. at 200 (quoting In re

Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254,

Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989)).
In determining the good cause standard under N.J.A.C. 1:12-
14.4(b), the Board should consider that "to further [the Act's]
remedial and beneficial purposes . . . the [Act] is to be construed
liberally in favor of allowance of benefits." Lourdes Med. Ctr.,
197 N.J. at 364 (second alteration in original) (quoting Utley v
Bd. of Review, 194 N.J. 534, 543 (2008)).
6
N.J.A.C. 1:12-14.4 became effective on August 1, 1994, 26 N.J.R.
3154-56 (Aug. 1, 1994), and was readopted effective on July 29,
1999, 31 N.J.R. 2603(a) (Sept. 7, 1999). At the time of its next
readoption in 2005, 37 N.J.R. 1015(b) (Apr. 4, 2005), the
Department of Labor and Workplace Development responded to a
comment suggesting the regulation should be amended "to limit the
rescheduling or reopening of an appeal after a failure to appear
to one time, given that a valid reason for the nonappearance is
provided." Noting "N.J.A.C. 1:12-14.4(b)[] provides that a
hearing may be rescheduled after a failure to appear only for
'good cause shown,'" the Department disagreed with the suggested
amendment, stating that "limiting the number of times a matter may
be rescheduled without regard to the surrounding circumstance[s]
may be arbitrary." Ibid. (emphasis added). The regulation was
readopted in 2011, 43 N.J.R. 1861(a) (Aug. 1, 2011), and again in
2018, 50 N.J.R. 1477(a) (July 2, 2018).

11 A-5697-16T4
262 (2010)). We are therefore convinced the appropriate remedy

is to vacate the Board's final decision, and remand the matter for

reconsideration of respondent's request to set aside the dismissal

order under N.J.A.C. 1:12-14.4(b).7 On remand, claimant and the

employer shall be permitted to offer argument concerning N.J.A.C.

1:12-14.4(b)'s good cause standard and evidence relevant to

claimant's request to set aside the dismissal order.

Vacated and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

7
N.J.A.C. 1:12-14.4(b) requires that the chief appeals examiner
decide whether to set aside a dismissal made pursuant to N.J.A.C.
1:12-14-4(a). The record presented is unclear whether the chief
appeals examiner considered and decided respondent's request. On
remand, the chief appeals examiner shall consider and decide the
request in the first instance.

12 A-5697-16T4