THE ESTATE OF MICHAEL BERNHARDSON 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NOT FOR PUBLICATION WITHOUT THE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

THE ESTATE OF MICHAEL

BERNHARDSON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and FREEHOLD CARTAGE, INC.,

Respondents.

________________________________________________________________

July 3, 2014

Submitted June 25, 2014 Decided

Before Judges Fuentes and Koblitz.

On appeal from Board of Review, Department of Labor, Docket No. 382,632.

Gregory S. Schaer, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief).

Respondent Freehold Cartage, Inc., has not filed a brief.

PER CURIAM

The Estate of Michael Bernhardson appeals from the November 28, 2012 final decision of the Board of Review holding Bernhardson disqualified for unemployment benefits on the grounds that he left work voluntarily without good cause attributable to the work based on the suspension of his driver's license, which was required to perform his job. We affirm.

Bernhardson began working for Freehold Cartage, Inc. as a truck driver in June 2008. He was terminated from employment on March 12, 2012, because he lost his commercial driver's license for seven months after a conviction for driving while intoxicated (DWI). On April 11, 2012, Bernhardson was denied unemployment. He appealed that decision to the Appeal Tribunal several weeks before he died on July 22, 2012. Lydia Ruiz is the administratrix of his estate and testified before the Appeal Tribunal on September 27, 2012, after Bernhardson's death, that she had "all the information." Ruiz conceded in her testimony that a valid driver's license was a prerequisite to Bernhardson's employment. Ruiz also testified that Freehold Cartage had no other work available for Bernhardson that did not require a driver's license.

Our review of 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.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). 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). 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.

N.J.S.A. 43:21-5(a) states in pertinent part:

An individual shall be disqualified for benefits:

 
(a) For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works eight weeks in employment . . . .

In a similar factual situation, where a tractor-trailer driver lost his driver's license after a conviction for DWI, our Supreme Court held that "where it is reasonably foreseeable that an employee's voluntary conduct will render him unemployable, and his actions actually do lead to the loss of a prerequisite of employment, the employee leaves work voluntarily without good cause attributable to the work pursuant to N.J.S.A. 43:21-5(a)." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 377 (1989). The Court stated that "a truck driver whose decision to drink and drive resulted in the loss of his driver's license, a prerequisite to his employment, has left work voluntarily without good cause pursuant to N.J.S.A.43:21-5(a)." Ibid.

The conclusion that the loss of a prerequisite license is considered a voluntary quit is further supported by N.J.A.C. 12:17-9.10(a), which states:

If an individual is discharged due to the loss of a prerequisite license which is necessary to perform the duties of his or her employment, such discharge shall subject the individual to disqualification for benefits for voluntarily leaving work if he or she engaged in an act which resulted in the loss of the license.

The Board did not act in an arbitrary, capricious or unreasonable fashion in denying benefits to Bernhardson.

Affirmed.