ADALBERTO TEXIDOR VS. 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NOT FOR PUBLICATION WITHOUT THE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-2722-18T4
ADALBERTO TEXIDOR,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and GREEN VILLAGE GARDEN
CENTER, INC.,
Respondents.
_____________________________
Argued telephonically August 25, 2020 –
Decided September 15, 2020
Before Judges Geiger and Mitterhoff.
On appeal from the Board of Review, Department of
Labor, Docket No. 164,948.
Adil Ahmed argued the cause for appellant (Make the Road New
Jersey, attorneys; Adalberto Texidor, pro se, on the briefs).1
1
This case was designated pro se at the request of Legal Services of New Jersey.
Legal Services assisted with the brief.
Jana R. DiCosmo, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Schuster, Assistant Attorney
General, of counsel; Jana R. DiCosmo, on the brief).
PER CURIAM
In this unemployment benefits matter, Adalberto Texidor appeals from a
January 10, 2019 final decision of the Board of Review, New Jersey Department
of Labor (the Board), disqualifying him from receiving unemployment benefits
under N.J.S.A. 43:21-5(a). The Board's decision was based on its determination
that Texidor left work voluntarily without good cause attributable or related to
the work. Having reviewed the record and applicable law, we vacate the Board's
final decision and remand for a rehearing.
We discern the following facts from the record. Texidor was employed
by Green Village Garden Center, Inc. (Green Village), and worked as a full-time
laborer beginning on March 4, 2017 and with a contractual end date of
November 15, 2017. Green Village participated in the United States Department
of Labor's H-2A Temporary Agricultural Program,2 which provides nine-month
temporary work visas for non-United States citizens. Because Texidor is from
2
The H-2A temporary agricultural program allows agricultural employers who
anticipate a shortage of domestic workers to bring nonimmigrant foreign
workers to the U.S. to perform agricultural labor or services of a temporary or
seasonal nature.
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Puerto Rico, he did not require a work visa through the program to work in the
United States. Nonetheless, Green Village agreed to provide Texidor all
employee benefits granted under the program.
On September 6, 2019, Green Village booked a flight for Texidor to return
home, with a departure date of October 3, 2017. Texidor filed a claim for
unemployment insurance benefits on August 26, 2018. After Green Village
disputed the claim, the Deputy Director of the Division of Unemployment and
Disability Insurance found Texidor disqualified from receiving benefits from
October 1, 2017, under N.J.S.A. 43:21-5(a), because he left work voluntarily
without good cause attributable to the work. Texidor appealed that
determination to an Appeal Tribunal (Tribunal), and a telephonic hearing was
held on November 15, 2018, at which both Texidor and his employer testified.
Texidor, who speaks no English, was represented by a non-lawyer advocate from
Legal Aid, and he received the services of an interpreter.
At the hearing, the employer claimed Texidor terminated his employment
voluntarily, because he was "homesick." On the other hand, Texidor claimed
that Green Village had terminated his employment. Under the terms of
employment as dictated by the H-2A program, Green Village was to purchase a
plane ticket for Texidor to return to Puerto Rico only if the employee completed
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the employment contract. Because Green Village purchased a plane ticket for
Texidor on September 6, 2017, he took this as an indication that his employment
was over. At no point did Texidor affirmatively state that he was "homesick" or
that he left voluntarily.
The transcript of the hearing, however, illustrates a great deal of confusion
and miscommunication. The term "inaudible" appears 139 times. The
interpreter asked for repetition of a statement twenty-two times and verification
of a statement eight times; required time to look up words six times; and made
interpreting errors that were corrected four times. Throughout the transcript, the
parties spoke over the interpreter, and telephone connections were cut off at
times.
In a decision dated November 16, 2018, the Appeal Tribunal found
Texidor was disqualified from receiving unemployment benefits because he
failed to complete the minimum period of the contract, and because
homesickness does not qualify as good cause unrelated to the work. On January
10, 2019, the Board affirmed the Tribunal's decision. This appeal ensued.
On appeal, Texidor raises the following points:
I. THE SEPARATION WAS NOT A VOLUNTARY
LEAVING AS A MATTER OF LAW SINCE THE
DECISION TO END THE EMPLOYMENT WAS
COMPLETED BY THE EMPLOYER POSTING
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PAYMENT OF RETURN TRANSPORTATION
WHICH SIGNIFIED THE COMPLETION OF THE
WORK CONTRACT UNDER THE TERMS OF THE
JOB ORDER AND THE REGULATORY
FRAMEWORK FOR THE JOB ORDER.
II. SINCE THE END OF THE JOB ORDER
CONTRACT WAS APPROACHING, WORK WAS
SLOW, AND THE EMPLOYER WAS PAYING FOR
RETURN TRANSPORTATION, THE DENIAL OF
BENEFITS SHOULD BE REVERSED UNDER THE
IMMINENT DISCHARGE REGULATION AND
BENEFITS MUST BE AWARDED.
III. APPELLANT TEXIDOR HAD GOOD CAUSE
FOR ACCEPTING THE RETURN
TRANSPORTATION OF THE EMPLOYER ENDING
THE WORK, DUE TO THE WORK SLOW DOWN,
AND THE FAILURE TO DISCLOSE THE ACTUAL
WORK CIRCUMSTANCES.
Our review of administrative decisions is limited. In re Stallworth, 208
N.J. 182, 194 (2011). We will not reverse an agency's decision unless it is
arbitrary, capricious, or unreasonable. Ibid. Agency action is arbitrary,
capricious, or unreasonable if the record does not contain substantial , credible
evidence to support the findings on which the agency based its decision. Ibid.
Additionally, "[w]hen an agency 'overlook[s] or underevaluat[es] . . . crucial
evidence,' a reviewing court may set aside the agency's decision." Cottman v.
Bd. of Review, 454 N.J. Super. 166, 171 (App. Div. 2018) (alterations in
original) (quoting Trantino v. N.J. State Parole Bd., 166 N.J. 113, 192 (2001)).
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New Jersey's Unemployment Compensation Law disqualifies a person
from receiving unemployment benefits if he or she "left work voluntarily
without good cause attributable to such work." N.J.S.A. 43:21-5(a). Thus, the
threshold question under N.J.S.A. 43:21-5(a) is whether an applicant for
unemployment compensation benefits left his or her job "voluntarily." "The
Legislature plainly intended that the reach of the subsection was to be limited to
separations where the decision whether to go or to stay was made by the worker
alone and, even then, to bar him only if he left his work without good cause."
Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953); see also Lord v.
Bd. of Review, 425 N.J. Super. 187, 190-91 (App. Div. 2012). Only after the
employee is determined to have left voluntarily does the court inquire into
whether the employee left for good cause attributable to work. Lord, 425 N.J.
Super. at 191 (declining to consider whether the employee had good cause to
leave work because it first determined the employee did not leave work
voluntarily).
Unfortunately, we find that our resolution of the issues on appeal is
hampered because the transcript of the hearing in this matter, at least as to the
exchanges between Texidor, the interpreter, and his non-lawyer advocate, raise
a substantial doubt whether Texidor understood the questions posed and whether
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his responses were accurately interpreted. In turn, this raises doubts about
Texidor's having had an adequate opportunity to answer the employer's
allegations that he returned to Puerto Rico voluntarily because he was homesick.
The lack of effective communication between Texidor, the interpreter, and the
legal aid representative appears to have impaired Texidor's opportunity to have
a fair hearing before the Tribunal. See Alicea v. Bd. of Review, 432 N.J. Super
347, 352 (App. Div. 2013) ("We have repeatedly acknowledged the important
role that proper translation into the language of the litigant plays in our legal
system.").
We conclude that the appropriate remedy is to vacate the Board's final
decision and remand the matter for a rehearing. On remand, the Board shall
ensure that the interpreter utilized speaks the same dialect as appellant to avoid
similar confusion on rehearing. We express no opinion on which party would
prevail based on the limited record before us.
To the extent we have not specifically addressed any of the parties'
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
The Board's final decision is vacated, and the matter is remanded for
further proceedings consistent with this opinion. We do not retain jurisdiction.
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