EMANUEL HERNANDEZ v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EMANUEL HERNANDEZ,

Appellant,

v.

BOARD OF REVIEW and

ACCU PERSONNEL, INC.,

Respondents.

________________________________________________________________

November 5, 2014

Submitted September 22, 2014 Decided

Before Judges Lihotz and Espinosa.

On appeal from the Board of Review, Department of Labor, Docket No. 410,551.

Emanuel Hernandez, appellant pro se.

John J. Hoffman, Acting 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).

PER CURIAM

Petitioner Emanuel Hernandez appeals from a final administrative agency decision by the Board of Review (Board) that determined he was ineligible for unemployment benefits. To be eligible for unemployment benefits, Hernandez had to meet the conditions set forth in N.J.S.A. 43:21-4, which include a requirement that "[t]he individual is able to work, and is available for work, and has demonstrated to be actively seeking work . . . ." N.J.S.A. 43:21-4(c)(1). In his appeal, Hernandez argues that he was "wrongfully understood of [sic] not being able and available for work" and should not be disqualified from receiving benefits. We disagree and affirm.

Hernandez was employed by Accu Personnel, Inc. (Accu), a staffing agency, as a warehouse worker from June 2010 until August 15, 2012, when he was laid off. Initially, the Department of Labor notified Hernandez that he was eligible for benefits beginning August 19, 2012. Accu appealed and the matter proceeded to a hearing before the Appeal Tribunal.

The only written agreement Hernandez had with Accu required him to maintain contact when he ended an assignment. Hernandez called Accu on August 20, 2012, but no work was available for him. Wilma Vera, Accu's staffing coordinator, testified that she attempted to contact Hernandez on August 22, 2012, to offer him work at his previous assignment, but Hernandez's telephone was disconnected.

Hernandez claimed that he had tried to call his employer numerous times but provided no evidence to support this assertion. Vera testified that all telephone calls from workers are logged in and that there was no record that Hernandez called seeking employment after his assignment ended.

Hernandez was questioned about his efforts to secure employment during the time from his layoff in August 2012 until the date of the Tribunal hearing in February 2013. He stated he applied for jobs at "McDonald's, gas station . . . anything that comes up like warehouse with an agency." He stated he contacted another agency, Protocol, daily. He explained that he did not continue to call his staffing coordinator at Accu because "she was always busy on the phone" and not normally there.

Vera denied receiving any calls or messages from Hernandez. Raquel Aviles, the employer's unemployment specialist, testified that work was available for Hernandez after he left in August and was still available for him as of the date of the Tribunal hearing.

The Tribunal rejected Hernandez's contention that he had called repeatedly because he failed to provide any evidence of the calls. The Tribunal concluded that Hernandez was "unavailable for work" and, therefore, ineligible for benefits under N.J.S.A. 43:21-4(c)(1) because he did not contact the employer for additional work.

On appeal, the Board agreed Hernandez was not available for work but differed with the Tribunal on the reason for that conclusion. The Board found that Hernandez "did not make a reasonable effort to secure employment in the general labor market" and, therefore, also concluded he was ineligible for benefits from August 2012 through February 2, 2013.

Our review is of the decision rendered by the Board. Because that is a final decision of an administrative agency, our review is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]" Ibid. Furthermore, an appellate court may not substitute its judgment for the fact-finding of an administrative agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). Although strictly legal issues are reviewed without such deference, we will usually "defer to matters that lie within the special competence of an administrative tribunal." Balagun v. N.J. Dept. of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003).

The record here included the Tribunal's rejection of Hernandez's contention that he made repeated efforts to renew his employment through his employer as well as the somewhat meager efforts Hernandez claimed he made to secure employment in the market. On this record, we cannot say that the Board's conclusion that he was ineligible for unemployment benefits because he had failed to "make a reasonable effort to secure employment in the general labor market" is arbitrary, capricious, unreasonable or unsupported by the evidence.

Affirmed.