GREGORY M. D'AGOSTINO JR 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NOT FOR PUBLICATION WITHOUT THE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-5422-09T2

GREGORY M. D'AGOSTINO, JR.,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, CULINARY MANAGEMENT

GROUP, SUPERSTAR ENTERPRISES,

t/a THE COVE, MARTELL'S

SEABREEZE, INC., and J.L.T.G.

INC., t/a VILLAGE BAR,

Respondents.

___________________________________________

January 20, 2012

Argued January 10, 2012 - Decided

Before Judges Payne and Simonelli.

On appeal from the Board of Review, Department of Labor, Docket No. 206,934.

Gregory M. D'Agostino, Jr., argued the cause pro se.

Ellen A. Reichart, Deputy Attorney General, argued the cause for respondent Board of Review (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Reichart, on the brief).

Respondents Culinary Management Group, Superstar Enterprises, t/a The Cove, Martell's Seabreeze, Inc., and J.L.T.G. Inc., t/a Village Bar have not filed briefs.

PER CURIAM

Appellant Gregory M. D'Agostino, Jr., appeals from the final decision of respondent Board of Review (Board), which affirmed the decision of the Appeal Tribunal that D'Agostino must refund $1752 in unemployment benefits pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2, is disqualified for benefits for one year pursuant to N.J.S.A. 43:21-5(g)(1) for making false or fraudulent representations, and must pay a $438 fine pursuant to N.J.S.A. 43:21-16(a). We affirm.

D'Agostino filed a claim for unemployment compensation benefits on November 30, 2003, and received a weekly benefit rate of $207. During the period of the week ending January 30, 2004 through the week ending May 15, 2004, he collected $1752 in unemployment benefits. During that same period, he was employed by four different employers, Culinary Management Group (Culinary), Superstar Enterprises, t/a The Cove (The Cove), Martell's Seabreeze, Inc. (Martell's), and J.L.T.G., Inc. t/a Village Bar (Village Bar). An investigation by the Department of Labor's Division of Unemployment Insurance (Division), which included a review of the employers' wage and payroll records, confirmed that during the weeks D'Agostino collected unemployment benefits, he earned wages that he either did not report or underreported.

At a hearing before the Appeal Tribunal, D'Agostino testified that he did not recall working for Culinary. Culinary's payroll records confirmed that D'Agostino worked there during the period he had collected unemployment benefits, and earned $453.95 that he did not report to the Division.

D'Agostino admitted he had worked for The Cove while collecting unemployment benefits. He claimed that he never received a payroll check or wages from this employer, and was only paid $18 in tips. However, The Cove's representative testified, and the Cove's payroll records confirmed, that the employer issued D'Agostino a payroll check for $54.74, which included $18.73 in tips paid to him. D'Agostino did not report these earnings to the Division.

D'Agostino admitted he had worked for Martell's while collecting unemployment benefits. He claimed he had received a check for negative $36 for the week ending April 10, 2004, and because he was in training, he only received tips and no wages. Therefore, the employer issued all of his payroll checks for zero dollar amounts. He also claimed he had reported all tips he had earned, and wages of $181 and $65, respectively, for the weeks ending May 8, 2004 and May 15, 2004. However, Martell's payroll records confirmed that he earned $198 and $166.50 for those weeks, and thus, underreported his earnings to the Division.

D'Agostino admitted he had worked for Village Bar during the weeks ending January 10, 2004 through January 24, 2004 while collecting unemployment benefits. He only reported wages of $126 for the week ending January 10, 2004, and denied receiving any other wages. However, Village Bar's payroll records confirmed that he earned $534.63 for the week ending January 10, 2004, and $556.50 for the week ending January 24, 2004. D'Agostino, thus, underreported his earnings for the week ending January 10, 2004, and failed to report his earnings for the week ending January 24, 2004.

In a written decision dated October 27, 2009, the Appeal Tribunal found D'Agostino not credible, and concluded that he had failed to report his correct earnings while collecting unemployment benefits, and this failure demonstrated fraud. Consequently, the Appeal Tribunal affirmed the Division's decision that D'Agostino must refund $1752 pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2, which is the amount he had received in benefits for the weeks ending January 3 through 24, 2004, March 20 through 27, 2004, April 10 through 24, 2004, and May 8 through 15, 2004. The Appeal Tribunal also affirmed the Division's decision to disqualify D'Agostino from receiving benefits for one year from the date of the Division's discovery of his illegal receipt of benefits pursuant to N.J.S.A. 43:21-5(g)(1), and fine him $438 pursuant to N.J.S.A. 43:21-16(a). The Board agreed with the Appeal Tribunal's decision and affirmed. This appeal followed.

Our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Public Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103, (1985)). "'[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.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981)). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) (citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)). Unless the agency's action "was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

Applying these standards, we discern no reason to disturb the Board's decision. The record amply supports the determination that while collecting unemployment benefits, D'Agostino earned wages that he failed to report or underreported, and the Board's decision is not arbitrary, capricious, or unreasonable. We affirm substantially for the reasons expressed by the Appeal Tribunal in its written decision dated October 27, 2009, which the Board adopted and affirmed.

Affirmed.