ALBIN LIMONTA PONS v. BOARD OF REVIEW et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1991-03T11991-03T1

ALBIN LIMONTA PONS,

Appellant,

v.

BOARD OF REVIEW and MILLAR, INC.,

Respondents.

_______________________________________

 

Submitted July 24, 2006 - Decided August 14, 2006

Before Judges C.S. Fisher and Grall.

On appeal from Final Decision of the

New Jersey Department of Labor, Board

of Review.

Albin Limonta Pons, appellant pro se.

Zulima V. Farber, Attorney General,

attorney for respondent, Board of Review

(Michael J. Haas, Assistant Attorney General, of counsel; Jennifer B. Pitre, Deputy Attorney General, on the brief).

Respondent Millar, Inc. did not file a brief.

PER CURIAM

Albin Limonta Pons, formerly a sales engineer employed by Millar, Inc. (Millar), which is a division of Schindler Elevators, appeals from an order of the Board of Review of the Department of Labor (Board). The order reverses the Appeal Tribunal's grant of extended unemployment compensation benefits. On motion of the Board, we remanded the matter to permit the Board to reconsider its decision of November 10, 2003. The Board held two additional hearings and issued a revised decision on April 15, 2005. Because the Board's revised decision is supported by the record, not arbitrary and consistent with the law, we affirm.

Limonta Pons worked for Millar between March 19, 2001 and July 15, 2002. His supervisor testified that the company is in the business of manufacturing, installing and maintaining elevators and escalators. Most of their work is not related to airports. Limonta Pons' job was selling elevators and escalators. He worked out of the company headquarters in Morristown, New Jersey and was responsible for sales in Latin America, as were others in his department. He did not deal with airports in the United States and spent ninety percent of his time in the Morristown office. His only business reason for going to an airport in the United States would be to travel as a passenger. He did not sell or service products in airports. According to his supervisor, Limonta Pons was terminated in connection with a reorganization and downsizing of his department. Although the company had dealings with airports in the New York Metropolitan area during his tenure, neither Limonta Pons nor anyone in his department was involved in those transactions. Limonta Pons gave conflicting testimony about his duties and responsibilities, but the Board credited the testimony of his supervisor.

Limonta Pons' claim for extended benefits was based on his assertion that he was eligible for temporary extended unemployment compensation benefits pursuant to federal law, P.L. 107-147 as amended by P.L. 108-11, 4002. The United States Department of Labor explains the purpose of the federal law as follows: "Section 4002 of P.L. 108-11 creates special rules for determining TEUC eligibility for certain displaced airline and related workers, who were separated for one of the specified reasons from a qualifying base period employer on or after September 11, 2001." 68 Fed. Reg. 35429 (June 13, 2003). As the explanation suggests, there are two central requirements for eligibility: 1) a "qualifying separation" and 2) a "qualifying employment." Ibid.

Both eligibility requirements are explained in regulations issued by the federal agency. A separation is qualified when it is attributable in whole or part to one of the following reasons:

. Reductions in service by an air carrier as a result of the terrorist actions on September 11, 2001, or a security measure taken in response to such actions.

. A closure of an airport in the United States as a result of the terrorist actions on September 11, 2001, or a security measure taken in response to such actions.

. The military conflict with Iraq.

[Id. at 35430.]

Employment is qualified when it is with an employer or at a location included in the following:

(1) Air Carriers. . . .

(2) At a facility at an airport. A "facility at an airport" includes any employer that is physically located on the grounds of an airport such as:

. Retail food facilities such as restaurants, bars, fast-food shops, and popcorn stands.

. Other retail facilities such as gift shops, newsstands, clothing stores, and kiosks.

. Hotels located on the airport grounds.

. Aircraft maintenance and service facilities.

. Parking facilities.

. Car rental facilities.

. Any other business physically located on the airport grounds, regardless of its business activities.

A "facility at an airport" also includes any airline related business which, although offsite, provides functions that are integrally related to the operation of the airport. These include airport parking on privately owned land, car rental services, or aircraft maintenance and service facilities. Employment with the same employer at a facility that does not meet this definition of "facility at an airport" is not "qualifying employment" for purposes of TEUC-A.

(3) Supplier for an Air Carrier. A "supplier" is an employer that produces component parts for, or articles and contract services considered to be a part of the production process or services for, an air carrier or for another supplier or upstream producer whose supplies, products or services are received or utilized by an air carrier and used for airline industry purposes.

[Id. at 35430.]

As noted above, the Board accepted the testimony of the employer. On that basis, it concluded that Limonta Pons failed to establish either prong of this two-prong test.

The role of this court in reviewing state agency findings is "determining 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard

. . . to the agency's expertise where such expertise is a pertinent factor." Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We also consider whether the agency has applied the law correctly. See id. at 93; Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). In this case we see no legal error in the Board's application of the criteria, and the Board's factual findings are supported by the testimony of the employee's supervisor, which explained the employee's work and the reasons for his termination.

Affirmed.

 

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A-1991-03T1

August 14, 2006