ANDREW R. SOUTH v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4348-09T1

ANDREW R. SOUTH,

Appellant,

v.

BOARD OF REVIEW and

R.A. MYER CORPORATION,

Respondents.

________________________________________

October 31, 2011

Submitted September 19, 1011 - Decided

Before Judges Parillo and Alvarez.

On appeal from the Board of Review, Department of Labor, Docket No. 250,019.

Andrew R. South, appellant pro se.

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

Respondent R.A. Myer Corporation has not filed a brief.

PER CURIAM

Claimant Andrew R. South appeals from the April 6, 2010 Department of Labor's Board of Review (Board) final decision finding him disqualified from receiving unemployment benefits from December 14, 2008, because he left work voluntarily without good cause attributable to the work. See N.J.S.A. 43:21-5(a). South also appeals the Board's further determination that because he was ineligible for benefits, he must refund $7,408 for the weeks ending April 11, 2009, through July 25, 2009. See N.J.S.A. 43:21-16(d). We affirm.

On August 27, 2009, the Deputy Director of the Division of Unemployment Insurance issued the initial determination that South was disqualified and was therefore liable to refund benefits he had received. The decision was affirmed by the Appeal Tribunal after a September 29, 2009 hearing in which South and the employer participated. South then appealed to the Board, and the Board's final decision followed.

South's only claim of error is:

CLAIMANT WAS LAID OFF BY EMPLOYER (MIKE) AND WHEN ASKED IF HE LAID CLAIMANT OFF EMPLOYER (MIKE) SAID I DON'T THINK SO. EMPLOYER (MIKE) LAID CLAIMANT OFF IN DECEMBER DUE TO THE FACT THAT IT WAS SLOW. EMPLOYER (MIKE) SAID CLAIMANT WOULD BE CALLED WHEN THINGS PICK UP. CLAIMANT NEVER RECEIVED A PHONE CALL TO COME BACK TO WORK.

South and Mike Grecco, the general manager for South's employer R.A. Myer Corporation t/a Ridgewood Moving Service, were the only witnesses at the hearing. South testified that work was limited in December 2008, and that he was told by Grecco he would be called back in when more work became available. He claimed he did not hear from the employer, left the area, and was attempting to obtain a position either teaching or substitute teaching, anything "non-labor related."

Grecco testified to the contrary, that South was one of his best employees whom he wanted to retain. He further stated his understanding that South left his employment because he was completing a "Masters in teaching." Grecco said he tried calling South in to work once or twice, and that another employee, at his request, called South more than once to return to the job. Grecco also testified that he would have attempted to give South at least thirty hours per week had he remained, as he considered him to be such an excellent employee.

The examiner asked South to explain why he did not contact his employer in April 2009, when the season began during which he could anticipate forty hours of work per week. South responded that he was already receiving unemployment in April and he reiterated that he never received a phone call.

The scope of our review of administrative agency action is limited and highly deferential. It is restricted to the following inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Brady v. Bd. of Review, 152 N.J. 197, 211 (1997) (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]

So long as the Board's decision is supported by sufficient credible evidence in the record and was neither "arbitrary, capricious, [nor] unreasonable," it will be affirmed. Id. at 210.

We review factual findings made by an administrative agency deferentially. On appeal, "the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady, supra, 152 N.J. at 210 (internal quotations omitted). So long as the factual findings are supported by "sufficient credible evidence, courts are obliged to accept them." Ibid. (internal quotations omitted). The Board's determination that South was not terminated or laid off from employment was based on credible evidence in the record. Both employer and employee agreed that work slowed during the winter season, and that available hours would increase in the spring. The appeal tribunal found credible Grecco's testimony that even while work was slow, thirty hours were available for South. The appeal tribunal also accepted as credible Grecco's testimony that he, personally, and an employee at his direction, attempted unsuccessfully to reach South by phone to ask him to return to work.

N.J.S.A. 43:21-5(a) provides that an individual who leaves work "voluntarily without good cause attributable to such work," will be disqualified from receiving unemployment benefits. South bears the burden of proving that he left his job for good cause attributable to the work. Brady, supra, 152 N.J. at 218; Morgan v. Board of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). Good cause has been interpreted to mean cause that justifies an employee's voluntary departure from the ranks of the employed to join the ranks of the unemployed. Domenico v. Board of Review, 192 N.J. Super. 284, 287 (App. Div. 1983).

South does not offer a reasonable explanation for his failure to return to work, at a minimum, during the start of his employer's busy season. That he was already receiving unemployment benefits, and claimed he was not called back, was not sufficient when juxtaposed with Grecco's testimony, which the examiner found credible, that because South was a good employee, he telephoned him, personally and through another, on several occasions to offer him work. We therefore conclude that South has failed to bear the burden of proof that his departure was for a good cause. Pursuant to N.J.S.A. 43:21-5(a), the Board's decision on this score is therefore affirmed. See Zielinski v. Board of Review, 85 N.J. Super. 46, 53 (App. Div. 1964).

Moreover, a person who received benefits when not entitled is obliged to repay those sums, N.J.S.A. 43:21-16(d), even if he received them in good faith. See ibid.; see also Fisher v. Board of Review, 123 N.J. Super. 263, 266 (App. Div. 1973). In light of South's disqualification for benefits effective December 14, 2008, he is statutorily required to reimburse unemployment benefits he was not entitled to receive in the first instance. This aspect of the Board's decision is also based on substantial credible evidence in the record and is not "arbitrary, capricious, or unreasonable." Brady, supra, 152 N.J. at 210-11. It merely implements the statutory mandate that funds wrongfully paid be returned.

Affirmed.