ROBERT E. BUCK 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NOT FOR PUBLICATION WITHOUT THE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

ROBERT E. BUCK,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, and NORWALT DESIGN, INC.,

Respondents.

________________________________

September 4, 2014

Argued July 30, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Board of Review, Department of Labor, Docket No. 343,979.

Robert E. Buck, appellant, argued the cause pro se.

Arupa Barua, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Barua, on the brief).

PER CURIAM

Appellant Robert E. Buck appeals the final decision of the Board of Review (Board) in the Division of Unemployment and Disability Insurance, Department of Labor and Workforce Development, which determined that he was disqualified for unemployment benefits from May 29, 2011 through July 23, 2011, because he had been discharged for misconduct. We affirm.

We discern the following facts and procedural history from the record on appeal. Buck worked for Norwalt Design, Inc., from November 5, 2010 through May 31, 2011, at which time he was terminated for absenteeism and insubordination. He applied for unemployment benefits on June 5. In a determination issued on June 27, the deputy director found Buck disqualified pursuant to N.J.S.A. 43:21-5(b), based on his termination for cause.

Buck appealed and the Appeal Tribunal held a hearing over three days in October. Buck testified that, because of exposure to paint and solvent fumes during the course of his work, he became ill. However, he produced no medical proof that his illness was job related. According to Buck, he notified his supervisors that he was experiencing problems from the fumes despite the respirator he was wearing.

Buck went to a hospital emergency room for treatment on March 23 and April 12. He also sought treatment from his own doctor. Without notifying his employer, Buck was absent from work from May 5 to 27. Buck saw a workers' compensation doctor on May 19, who did not authorize him to stay out of work.

Buck reported to work on May 27, but was told by a supervisor that he needed a doctor's note concerning his absences. On May 31, during a telephone conversation with the president of Norwalt, Buck became angry because he believed the company president was unconcerned about his medical problems. He admitted that he "blew up," called the president a "cheap bastard," and hung up on him. On June 1, he received a letter of termination.

On October 31, the Appeal Tribunal issued a decision affirming the deputy director. It found that Buck's absences from work did not constitute misconduct, but that his use of abusive language towards his employer constituted "willful and deliberate disregard of the standards of behavior the employer had a right to respect." The Tribunal characterized the behavior as "simple misconduct."

Buck appealed to the Board, which affirmed the Appeal Tribunal's decision on April 16, 2012. This appeal followed. Buck argues that he was made ill at work, that there should have been no period of disqualification, and that the matter should be remanded to the agency for further consideration on an expanded record.1

Our scope of review of an 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. Co. 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 (citing In re Warren, 117 N.J. 295, 296 (1989)).

We also 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." Ibid. (emphasis added) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)) (internal quotation marks omitted). So long as the "factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

N.J.S.A. 43:21-5(b) (emphasis added) provides that an applicant for unemployment benefits "shallbe disqualified for benefits . . . (b) [f]or the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the seven weeks which immediately follow that week, as determined in each case." The Board's decision to uphold the determination of the Appeal Tribunal based solely on his termination for insubordination was supported by sufficient, credible evidence in the record and was not arbitrary, capricious, or unreasonable.

The merits of Buck's assertion that his health problems were related to his work are not relevant to the issue of whether he was insubordinate and terminated for that reason. He does not dispute the basic facts that underlie the finding of insubordination, which are based largely on his own testimony.

1 During the pendency of the appeal, Buck moved to supplement the record with documents that were not before the agency. The Board opposed the motion, which was deferred to the merits panel. We agree with the Board that the documents are not relevant to the issue on appeal because the agency decision was based on Buck's insubordination, rather than his absenteeism. We now deny the motion to supplement the record, and we grant the motion to accept the brief "as is".