VINCENT J. GENTILE v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VINCENT J. GENTILE,
 

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and ALLIED BEVERAGE

GROUP, LLC,

Respondents.

_________________________________________

November 20, 2015

Submitted September 16, 2015 Decided

Before Judges St. John and Guadagno.

On appeal from the Board of Review, Department of Labor, Docket No. 440,546.

Vincent J. Gentile, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lisa A. Puglisi, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief).

FoxRothschild, LLP,attorneys for respondent Allied Beverage Group, LLC, join in the brief of respondent Board of Review.

PER CURIAM
 

Vincent J. Gentile appeals from a final decision of the Board of Review (Board), dated May 16, 2014, imposing a period of ineligibility for unemployment benefits from August 11, 2013 through August 17, 2013. The Board affirmed the decision of the Appeal Tribunal except it determined Gentile was ineligible for benefits pursuant to N.J.S.A. 43:21-19(m)(1)(A), which provides

An individual shall be deemed "unemployed" for any week during which: (A) The individual is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate, including any week during which he is on vacation without pay; provided such vacation is not the result of the individual's voluntary action, except that for benefit years commencing on or after July 1, 1984, an officer of a corporation, or a person who has more than a 5% equitable or debt interest in the corporation, whose claim for benefits is based on wages with that corporation shall not be deemed to be unemployed in any week during the individual's term of office or ownership in the corporation[.]

[(emphasis added).]

Gentile disputes the Board's determination that he was not prevented from working during the shut-down period and, as a result, any unpaid vacation was voluntary. Our examination of the record satisfies us that the Board's final decision was properly premised on facts in the record and is consonant with relevant statutory provisions. Accordingly, we affirm.

I.

The record discloses the following facts and procedural history, which includes a testimonial hearing conducted on December 9, 2013, leading to the administrative determination under review. Gentile was employed full-time as a salesperson by Allied Beverage Group, LLC (Allied). Gentile's compensation is based entirely on commissions earned on sales. Allied shut down for the week that Gentile claimed benefits. He contends his union contract requires him to take vacation for that week. Gentile filed a claim for unemployment benefits for the shut-down week.

Allied's representative, Brittany Wilkinson, testified that Gentile was permitted to contact his accounts and put in orders during the shut-down week, although the orders would not be processed until the Monday after the shut-down. She further stated that Gentile received a paycheck for the shut-down week "from any orders that he had put in 30 to 45 days previously." She testified, "there's not one week from August up until December 6th, that there was no paycheck."

On September 17, 2013, the Deputy Director of the Division of Unemployment and Disability Insurance (Division) mailed Gentile a determination in which the Deputy found he was ineligible for benefits on the claim because he was employed on a full-time basis. Gentile appealed the Deputy's determination to the Appeal Tribunal. In a decision dated December 13, 2013, the Appeal Tribunal affirmed the Deputy's determination that Gentile was ineligible for benefits. The Appeal Tribunal determined his union contract "does not exempt him from the open opportunity to access available work that week. . . . Therefore, [Gentile] was not considered unemployed and is ineligible for benefits from 8/11/13 through 8/17/13 under N.J.S.A. 43:21-19(m)(1)."

Gentile then appealed the Appeal Tribunal's decision to the Board. On May 16, 2014, the Board affirmed the Appeal Tribunal's decision, except that the Board determined Gentile "is ineligible for benefits pursuant to N.J.S.A. 43:21-19(m)(1)(A)[.]" It is from that determination that Gentile appeals.

On appeal, Gentile maintains that he was laid off from his job during the shut-down week because he was prohibited from working and, therefore, he should not have been disqualified for benefits.

II.

The scope of our review of a determination of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will not disturb an agency's ruling unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). When we "'review[] the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). We must "give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). For those reasons, "[i]f the factual findings of an administrative agency are supported by sufficient credible evidence, [we] are obliged to accept them." Self v. Bd. of Review, 91 N.J. 453, 459 (1982).

The Board adopted the findings of fact of the Appeal Tribunal that Gentile "was able to contact his accounts, visit his accounts and place orders during that week." Therefore, the Board concluded his vacation was a result of his voluntary action. We are satisfied that the factual findings are supported by sufficient credible evidence, and the record supports the Board's determination that Gentile's unemployment claim was invalid under N.J.S.A. 43:21-19(m)(1)(A).