PHILLIP L. BURD VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0531-17T1
A-0532-17T1
PHILLIP L. BURD,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and J. GIVOO CONSULTANTS
I, INC., and NEW YORK CWC,
Respondents.
_____________________________
Submitted October 17, 2019 – Decided January 15, 2020
Before Judges Nugent and Suter.
On appeal from the Board of Review, Department of
Labor, Docket Nos. 093,447 and 093,450.
Phillip Burd, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Andy Jong,
Deputy Attorney General, on the brief).
Respondents J. Givoo Consultants I, Inc., and New
York CWC have not filed briefs.
PER CURIAM
Appellant Phillip L. Burd appeals from the April 28, 2017 final decision
of the Board of Review (Board), affirming the decision of the Appeal Tribunal
that reduced his unemployment benefits to zero based on his receipt of pension
benefits. We affirm.
Burd was a member of International Brotherhood of Electrical Workers
Local 43 (the Union) in New York. His pension is maintained and paid by the
Union. Since 1986, he worked for twenty-eight different contractors that
contributed to the pension. He began working for J. Givoo Consultants I, Inc.
(Givoo) in October 2010, and exclusively for it in October 2012. Givoo was the
sole contributor to his pension from that date.
These appeals address two separate claims for unemployment benefits.1
Burd's claim filed on May 8, 2011, established a weekly benefit rate of $554 and
was based on his earnings from Givoo during the base year period. Appeal A-
0531-17 concerns unemployment payments made under the 2011 claim, which
was on extension, for the weeks ending January 19, 2013, to March 30, 2013,
1
The appeals are consolidated because they raise the same issues.
A-0531-17T1
2
and November 16, 2013, to December 28, 2013. These payments totaled
$10,456.
On May 6, 2012, Burd filed another claim for unemployment benefits.
That claim established a weekly benefit rate of $611 and was based on Burd's
earnings from Givoo during the base year period. Appeal A-0532-17 concerns
unemployment payments made under that claim, which also was on extension,
for weeks ending December 8, 2012 to January 12, 2013. Those payments
totaled $3446.2
On November 30, 2012, Burd began receiving pension payments of
$3256.50 per month from the Union. On April 1, 2013, this amount increased
to $3263.503 and continued at that amount. Burd received pension payments
during months he received the unemployment benefits in issue here.
On July 2, 2016, the Deputy Director found Burd eligible for
unemployment benefits for the weeks in question but reduced the weekly benefit
to zero based on Burd's monthly pension payment. The Deputy noted that Burd's
"employer on which [his] claim [was] based was the sole contributor to [his]
2
There is a third appeal, A-4245-16. That case involved Burd's unemployment
claim filed in May 2013. On December 4, 2018, we remanded that appeal to the
Board without retaining jurisdiction.
3
It was $3284.50 for just one month in March 2013.
A-0531-17T1
3
pension." On July 20, 2016, the Department of Labor and Workforce
Development (the Department) notified Burd the unemployment he received
was "collected improperly" and had to be returned pursuant to N.J.S.A. 43:21-
16(d).
Burd appealed that determination. Although a hearing commenced before
the Appeal Tribunal examiner in August 2016, Burd "needed additional time to
prepare for the hearing [and his appeal was] . . . dismissed without prejudice."
In Burd's November 2016 request to reopen the appeals, he argued Givoo
did not contribute monies to his pension account nor was Givoo the sole
contributor of funds during the thirty years he worked for the Union. He argued
he could work without being disqualified from receiving a pension, and that
monies "being disbursed to the local union in [his] name, . . . will not add
additional benefits to [him] and will stay in the fund due to the pension benefit
amount being set at the time [he] began drawing a benefit from [his] fund." He
also claimed to have incorrectly answered a question on the unemployment
claim form.
In January 2017, following a hearing, the Appeal Tribunal rejected Burd's
argument that his employer did not contribute to his pension. It reduced his
benefit rate to zero, citing N.J.S.A. 43:21-5a and N.J.A.C. 12:17-8.2. Pursuant
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to an "inside agreement" that Burd supplied at the hearing, the employer paid
the Union "separate monies known as fringe benefits for other things such as the
claimant's pension." Burd's paystubs showed he paid Union dues but did not
contribute to a pension. Even though the Union paid Burd a pension, "the
payments were as a result of the money from [Givoo] who is a base year
employer on the claimant's unemployment claim." The Appeal Tribunal found
Burd was liable to refund the amounts received as unemployment, citing
N.J.S.A. 43:21-16(d). It did not address Burd's argument that his unemployment
could not be reduced if his salary payments did not increase his pension.
Burd appealed the Appeal Tribunal decision to the Board, raising the same
arguments. The Board found "no valid ground for a further hearing," affirming
the decision after a "careful examination of the record."
Burd raises a single issue on appeal:
THE APPELLANT[']S BENEFITS SHOULD NOT BE
REDUCED BECAUSE THE MONEY HE EARNED
BY WAY OF EMPLOYMENT AFTER HE STARTED
COLLECTING HIS PENSION DOES NOT AFFECT
HIS ELIGIBIITY TO RECEIVE OR INCREASE THE
AMOUNT OF HIS MONTHLY PENSION BENEFIT.
Review of an administrative agency's final decision is limited. Kadonsky
v. Lee, 452 N.J. Super. 198, 201 (App. Div. 2017). "We will not reverse an
agency's judgment unless we find the decision to be 'arbitrary, capricious, or
A-0531-17T1
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unreasonable, or [] not supported by substantial credible evidence in the record
as a whole.'" Id. at 202 (alteration in original) (quoting In re Stallworth, 208
N.J. 182, 194 (2011)). We "defer to the specialized or technical expertise of the
agency charged with administration of a regulatory system." K.K. v. Div. of
Med. Assistance & Health Servs., 453 N.J. Super. 157, 160 (App. Div. 2018)
(quoting In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008)). An agency
is owed "some deference to the Board's interpretation of the statutory scheme
that the Legislature has entrusted it to administer" but the court is not "bound by
an unreasonable or mistaken interpretation of that scheme, particularly one that
is contrary to legislative objectives." McClain v. Bd. of Review, 237 N.J. 445,
456 (2019) (citing Russo v. PFRS, 206 N.J. 14, 27 (2011)).
Under N.J.S.A. 43:21-5a unemployment benefits can be reduced in certain
circumstances where a claimant is receiving a pension.
The amount of benefits payable to an individual for any
week which begins in a period with respect to which
such individual is receiving a governmental or other
pension, retirement or retired pay, annuity, or other
similar periodic payment which is based on the
previous work of such individual shall be reduced, but
not below zero, by an amount equal to the amount of
such pension, retirement or retired pay, annuity, or
other payment, which is reasonably attributable to such
week; provided that . . . the Commissioner of Labor
and Workforce Development may prescribe in
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regulations which are consistent with the federal
Unemployment Tax Act any of the following:
a. The requirements of this section shall only apply in
the case of a pension . . . under a plan maintained or
contributed to by a base period or chargeable employer
...;
b. The amount of any such reduction shall be
determined taking into account contributions made by
the individual for the pension, retirement or retired pay,
annuity or other similar periodic payment[.]
[N.J.S.A. 43:21-5a.]
Known as the pension offset statute, it is intended "to prevent an
individual who is retired from employment or who is involuntarily and
permanently separated from employment at a time when he or she is entitled to
full pension benefits from collecting both unemployment benefits and retirement
benefits based on the same prior work period." Giesler v. Bd. of Review, 315
N.J. Super. 28, 32 (App. Div. 1998).
Under the Department's implementing regulations, where "a pension is
received from a base period or chargeable employer" and the plan is "maintained
or contributed to" by the employer, unemployment benefits can be reduced.
N.J.A.C. 12:17-8.1(a). Here, the reduction applied because Givoo was the
chargeable employer and contributed to the pension.
A-0531-17T1
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Under N.J.A.C. 12:17-8.2(a)(1), if the claimant did not contribute to the
pension plan, "the weekly and maximum amount of benefits payable to the
individual shall be reduced by an amount equal to the amount of the pension
. . . which is reasonably attributable to such week[.]" Because Burd was
receiving monthly pension payments and because Givoo was the base period
chargeable employer and sole contributor to the pension during the base years
in question, the Board was correct to reduce Burd's unemployment benefits to
zero. There was nothing arbitrary, capricious or unreasonable about this
decision.
Burd argues the Board ignored N.J.A.C. 12:17-8.1(b) when it offset his
pension. It provides:
If the remuneration for services performed for the
employer during the base year by the individual does
not affect eligibility for, or increase the amount of, the
pension, retirement or retired pay, annuity, or similar
payment then the individual's unemployment benefits
shall not be reduced by the amount of the pension.
Burd testified at the hearing that his pension would remain the same even if he
"work[ed] another [fifty] years[.]" He acknowledged, however, the reason the
pension payment was $3256.50 when it commenced and increased to $3263.50
was because it would take four to six months to credit the money coming into
an account. "[Y]ou got six to eight months by the time the contractor pays us;
A-0531-17T1
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by the time the union receives it and by the time it actually goes on the record
. . . ." He testified that once he retired, the pension "stays the same."
N.J.A.C. 12:17-8.1(b) does not apply because the unemployment benefits
in these appeals were extensions from 2011, and 2012. Burd did not retire until
November 30, 2012. In 2011, and 2012, Givoo's contributions affected his
pension by disbursing his fringe benefits to the Union. This was reflected in the
pension fluctuation. Since his unemployment benefits derived from the same
base-year employer, they were properly reduced because of the pension. Burd
received unemployment benefits of $10,456 under the 2011 claim and $3446
under the 2012 claim. Because these amounts should have been offset, the
Board was correct to require these monies to be refunded under N.J.S.A. 43:21-
16(d).
Affirmed.
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