JON D. NASON v. BOARD OF REVIEW DEPARTMENT OF LABOR and METROPOLITAN RECLAMATION SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1965-08T2

JON D. NASON,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR

and METROPOLITAN

RECLAMATION SERVICES,

Respondents.

______________________________________________________

February 7, 2011

Submitted January 11, 2011 - Decided

Before Judges Messano and Waugh.

On appeal from the Board of Review, Department of Labor, Docket No. 186,946.

Jon D. Nason, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Metropolitan Reclamation Services has not filed a brief.

PER CURIAM

Jon Nason appeals from the final decision of the Board of Review (the Board) affirming the decision of the Appeals Tribunal (the Tribunal) that concluded he was disqualified from receiving unemployment benefits because he had left work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a). We affirm.

Nason worked as a driver for Metropolitan Reclamation Services (MRS) from May 2007 through April 2008. He filed a claim for unemployment benefits effective May 9, 2008. The Deputy Director initially determined Nason was disqualified, but that decision was reversed by the Tribunal. MRS appealed to the Board, which reversed and remanded the matter for a full hearing before the Tribunal's Appeals Examiner. That took place on October 17, 2008.

Jeffrey Fogelson, the chief executive officer of MRS, testified that Nason had violated the company's overtime policy. Specifically, Nason arrived at locations to pick up merchandise well before the store opened and then submitted overtime requests. Fogelson also claimed that Nason refused to "turn on his GPS tracking cell phone" issued by MRS, thus denying the company the opportunity to monitor his whereabouts. Fogelson claimed defendant had been warned about these issues in the past.

On April 21, 2008, a Monday, Fogelson confronted Nason about the conduct. Nason "got angry," complained that he was being kept on "a leash," threw his truck keys at Fogelson and said that he was quitting on Friday. Fogelson told him "if you're quitting on Friday, you should leave now." Nason left and never returned.

Nason presented a different version of events. He claimed that Fogelson misunderstood his statement. He did not intend to resign, but, rather, was asking the dispatcher, who was present at the meeting, if he could remain on the assigned route until the end of the week. Nason also denied failing to turn his cellphone on, claiming instead that the phones were of poor quality and that he was not supplied with an adequate charger. Nason further denied throwing his truck keys at Fogelson.

Ken Johnson, the warehouse manager at MRS, was also present at the meeting. He testified and essentially corroborated Fogelson's version of the events.

The Tribunal accepted the employer's testimony as credible and concluded Nason "quit," and, therefore, was disqualified pursuant to N.J.S.A. 43:21-5(a). However, citing N.J.A.C. 12:17-9.7(a), the Tribunal concluded that the effective date of Nason's resignation was April 28, 2008, making the disqualification effective as of April 27.1 The Board affirmed the Tribunal's decision in all respects and this appeal followed.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing 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)). "If the Board's factual findings are supported by sufficient credible evidence, [we] are obliged to accept them." Brady, supra, 152 N.J. at 210 (quotations and citations omitted); Bustard v. Bd. of Review, 401 N.J. Super. 383, 387 (App. Div. 2008). Only if the Board's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

N.J.S.A. 43:21-5(a) provides that "[a]n individual shall be disqualified for benefits . . . [f]or the week in which the individual has left work voluntarily without good cause attributable to such work . . . ." On appeal, Nason contends that he did not resign, but, rather, was terminated without cause.

The Tribunal specifically rejected this argument, finding instead that Nason's "contention that he did not intend to leave [work] lack[ed] merit." This conclusion was reached after assessing the credibility of the witnesses who testified, and consequently is entitled to our deference. See Logan v. Board of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) ("The appellate court must also give due regard to the opportunity of the one who heard the witnesses to judge their credibility.") (citation omitted). In short, applying the appropriate standard of review, we cannot conclude that the Board's decision was "arbitrary, capricious or unreasonable." Brady, supra, 152 N.J. at 210.

A

1 This regulation provides: "When an individual gives the employer notice of resignation and the employer subsequently terminates the individual's employment prior to the effective date of the notice, the individual's separation shall be reviewed as a voluntarily leaving work issue as of the effective date of the resignation." N.J.A.C. 12:17-9.7(a).