                                NOT FOR PUBLICATION WITHOUT THE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


                                                                          A-0531-17T1
                                         4
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
                                        5
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


                                                                           A-0531-17T1
                                        6
            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
                                        7
        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
                                          8
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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                                         9
