RICHARD A. POLINE 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NOT FOR PUBLICATION WITHOUT THE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

RICHARD A. POLINE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and MARK BERTOLI

PLUMBING AND HEATING,

Respondents.

_____________________________________________________________

December 9, 2015

Submitted September 24, 2015 Decided

Before Judges Koblitz and Kennedy.

On appeal from the Board of Review, Department of Labor, Docket No. 367,496.

Richard A. Poline, appellant pro se.

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

Respondent Mark Bertoli Plumbing and Heating has not filed a brief.

PER CURIAM

Richard Poline, appellant, was found to be ineligible for unemployment benefits by the Board of Review and he appeals. He argues that the Board erred both procedurally in accepting the employer's "untimely" appeal, and substantively in its findings and conclusions.

Appellant had been employed by Mark Bertoli Plumbing and Heating (Bertoli) as a full-time plumber from June 7, 2002, to November 25, 2011, at which time his employment was terminated. He sought unemployment benefits and, following a series of evidentiary hearings and appeals, the Appeal Tribunal found appellant to be ineligible for benefits. That decision was affirmed by the Board, and this appeal followed.

Appellant argues that an appeal from the initial determination by a deputy which found him to be eligible for benefits was untimely, and that the Board erred in finding that he was disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause. We have carefully considered these arguments in light of the facts and the law, and we affirm.

I.

We shall address the procedural issue first. On December 21, 2011, a telephonic hearing was held before a deputy of the Division of Unemployment and Disability Insurance on appellant's application for unemployment benefits, which he had filed on November 26, 2011. The only participants in the hearing were appellant and Mark Bertoli, the owner of the plumbing business for which appellant had worked since June 2002.1

Following the hearing, the deputy determined that appellant was eligible for benefits, and on December 21, 2011, prepared and mailed a notice of determination in which the "Morris County Vocational Board of Education" was identified as appellant's employer. Notwithstanding that apparent error, it is undisputed that both Bertoli and CCM received the notice, which prominently set forth the following

Right of Appeal

Any appeal from this determination must be submitted in writing within 7 days after delivery or within 10 days of the date of mailing. The tenth day after the date of mailing is

1/03/12

The appendix submitted with appellant's brief on this appeal includes a letter from the Morris County Vocational School District dated January 4, 2012, to the Appeal Tribunal explaining, in part, that appellant is still employed there, and that the cost of appellant's unemployment benefits "should be charged to" the "full-time employer [that] terminated him."

While the appendix does not include a copy of any written appeal filed by Bertoli, an examiner for the appeals tribunal explicitly addressed the issue at a hearing on July 25, 2012. At that time, explaining to the parties that she would have to "resolve the timeliness of the appeal" in addition to all substantive issues. Bertoli thereafter under oath confirmed that he mailed a letter appealing the deputy's determination to the Department of Labor on January 4, 2012. The letter also stated that Bertoli "received [the deputy's December 21 determination] in my office on January 3rd."

The Appeal Tribunal then found as a fact, among other things, that Bertoli first received the deputy's notice on January 3, 2012, and filed an appeal on January 4. Consequently, the Appeal Tribunal concluded, "[t]he appeal was filed timely." While the Board later remanded the matter to the Appeal Tribunal to address an unrelated issue, the final agency decision of the Board affirmed the finding of the Appeal Tribunal that Bertoli filed a timely appeal on January 4, 2012.

Our review of an appeal from a final determination of an administrative agency is strictly limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). We can only intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

Furthermore, "'[i]n reviewing the factual findings made in an unemployment compensation proceeding, 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. (alteration in original) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).

The time for filing an appeal from the determination of the director is prescribed by N.J.S.A. 43:21-6(b)(1), which states in pertinent part

Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification was mailed to his or their last-known address and addresses, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith . . . .

In Lowden v. Bd. of Review, 78 N.J. Super. 467, 469 (App. Div. 1963), we held that the right to obtain unemployment compensation benefits is "purely statutory" and the "procedural aspects of the enforcement of such right are governed entirely and exclusively by the statute." We will not review the merits of a decision unless there has been a timely appeal, and the agency itself is without jurisdiction to address untimely appeals. Id. at 468-71.

In his brief, appellant has argued that the procedural aspects of an appeal in an unemployment compensation matter are governed entirely and exclusively by statute, which contains an "absolute deadline." See id. at 467. Such reliance on Lowden's rule however, is misplaced. The Appeal Tribunal and Board here determined that Bertoli filed an appeal within one day of receiving the notice on January 3, 2012, and that the appeal, therefore, is timely. See Newman v. Bd. of Review, 434 N.J. Super. 483, 491 (App. Div. 2014). We see no reason to quarrel with that finding of fact and conclusion of law.

Appellant's other procedural arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

II.

We shall next address appellant's argument that the Board erred in its substantive findings and conclusions, mindful of the standards that govern our limited review. Appellant argues that the "appeal tribunal decision was arbitrary and capricious" in finding that he voluntarily left his job at Bertoli without good cause attributable to such work. He also argues that the Appeal Tribunal erred in concluding he had written a letter to Bertoli on November 4, 2011, confirming he was leaving work at the end of that year. We disagree with these arguments and we affirm.

As we explained earlier, our review of agency decisions is limited. Brady, supra, 152 N.J. at 210. In reviewing the agency's factual findings, we give due regard to the agency's expertise and ability to judge credibility. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Absent a finding that it was "arbitrary, capricious, or unreasonable," we will not disturb an agency's decision. Brady, supra, 152 N.J. at 210. To ascertain whether an agency's decision is arbitrary, capricious or unreasonable, this court must determine

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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.

[Lavezzi v. State, 219 N.J. 163, 171 (2014) (citation and quotation marks omitted).]

"As a reviewing court, while we respect an agency's expertise, ultimately the interpretation of statutes and regulations is a judicial, not administrative, function and we are not bound by the agency's interpretation." Silver v. Bd. of Review, 430 N.J. Super. 44, 58 (App. Div. 2013). Therefore, we are "not bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue." Lavezzi, supra, 219 N.J. at 172 (citation and quotation marks omitted).

In considering the evidence, "the reviewing court should give due regard to the opportunity of the one who heard the witnesses to judge [] their credibility." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (alteration in original) (citation and internal quotation marks omitted). "It is not for us or the agency head to disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005) (alteration in original).

N.J.S.A. 43:21-5(a), provides that an individual is disqualified for unemployment compensation benefits where that "individual has left work voluntarily without good cause attributable to such work . . . ." In order to avoid disqualification, the claimant has the burden of establishing that he left work for good cause related to work. Brady, supra, 152 N.J. at 218. "Good cause means 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed,' and the reasons for terminating employment 'must meet the test of ordinary common sense and prudence.'" Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 53-54 (App. Div. 1964)). "Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily." Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (citation omitted). An employee's "decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Ibid. Moreover, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid. (citation omitted). Thus, an employee who quits a job without a sufficient work-related reason is disqualified from benefits under N.J.S.A. 43:21-5(a).

An analysis of a claimant's eligibility for benefits where the employer asserts that the claimant voluntarily left his job entails a consideration of two issues: (1) whether the claimant's separation from employment was, in fact, voluntary; and in the event the separation was voluntary, (2) whether the separation was for "good cause attributable to the work." Lord v. Bd. of Review, 425 N.J. Super. 187, 190-91 (App. Div. 2012) (citation omitted). In Lord, we stated an employee's separation will not be voluntary if the court finds it was "employer rather than employee-initiated." Id. at 194. However, the central issue is not how the separation was "initiated," but how it was ultimately effected. Voluntary actions contributing to the separation alone are insufficient; the separation itself must be voluntary and within the employee's exclusive control. Campbell Soup v. Bd. of Review, 13 N.J. 431, 435 (1953). Ultimately, an employee's separation from work is voluntary if "the decision whether to go or to stay lay at the time with the worker alone." Lord, supra, 425 N.J. Super. at 191 (quoting Campbell Soup, supra, 13 N.J. at 435).

In Lord, the employer informed the employee he "must resign" when the employee, whose personal vehicle was being repaired, could not guarantee on Thursday that he would have an automobile available to make deliveries on Monday. Id. at 190-91. In denying benefits, the Appeal Tribunal stated

[T]he one who initiates that action which eventually leads to the separation is the one who is responsible for breaking the employer-employee relationship. Thus, the claimant left work because he was unable to obtain transportation to perform his job. This was a personal reason and was not attributable to the work.

[Id. at 190 (alteration in original).]

We rejected the premise that an employee's temporary inability to provide the transportation necessary for his work constituted a "voluntary" separation under N.J.S.A. 43:21-5(a), finding it "inconsistent with the principle that the Unemployment Compensation Law 'is to be construed liberally in favor of allowance of benefits.'" Id. at 195 (citation omitted).

Guided by these principles, the issue on appeal is whether there was sufficient evidence in the record before the Board to support its findings and conclusions; more particularly, the factual controversy centered on the question of whether appellant told Bertoli he was leaving employment at the end of the year. Appellant says he merely told Bertoli he was "thinking" of leaving at that time.

The evidence adduced before the Appeal Tribunal showed that appellant worked as a plumber for Bertoli since June 2002. According to Bertoli, appellant advised him in "early October" that he "couldn t do this work anymore and he was going to go do something else . . . ." Bertoli further stated he valued appellant's services and did not want him to leave. Nonetheless, according to Bertoli

[appellant said] he just couldn't handle the work anymore. So at that time I put an ad in the paper and I hired Richard Dean who started employment on 10/24 and he worked alongside [appellant]. [Appellant] broke him in and introduced him to all the contractors so that I would have a smooth separation and then when he did give notice, he said as soon as we got cleared up it wouldn't be a problem he would leave. He gave me a letter that s signed . . . . It says right on it that he gave notice four weeks ago that letter was dated 11/4/11.

Bertoli adds that the letter "was typed up and it's signed by [appellant]." Although appellant challenges the authenticity of the letter, it states

Dear Mark, On Monday August 29, 2011 I called in because of the damage by the hurricane and lack of power. I was entitled to sick pay or a personal day but never received pay for that day. On Wednesday November 2nd 2011, I called in sick because I was sick. I was entitled to be paid for this day and was not. I was hired into this job with sick and personal days. I have worked here for over 9 years and have not abused the use of my days, and did not even take off a sick or personal day in 2010. I have given my notice, with my intent to terminate my employment at the end of the year, four weeks ago. I fully expect to be compensated for these days as well as two weeks vacation. I was entitled to two weeks vacation in June of 2011, for 9 years of employment, and have only used one week in August. I am entitled to another week for the 5 months I have been employed from June until present. My vacation from last year was from Sunday December 26 until Friday December 31. I returned to work on Monday January 3rd and am therefore owed a Holiday for New Years. If I left today I fully expect to be compensated for 9 vacation days, 2 sick days and the Holiday. If I leave in December I will be owed an additional day. MY time employed here entitled me to a total of 18 weeks vacation time. I have used a total of 16 weeks, therefore I am entitled to compensation for two weeks I have accrued this year 2011 but have not used this year. Thank You, Rich Poline.

If authentic, this letter corroborates Bertoli's claim that appellant gave voluntary notice of termination. The letter states such notice occurred "four weeks" earlier, which would be "on or about the week of October 2."

Bertoli explained that appellant remained employed until November 25, 2011, because that was the date when Dean, appellant's replacement, was "caught up on all the work." Bertoli stated that while appellant "would like to stay to the end of year," he was nonetheless amenable to leaving early "if [Bertoli] got caught up and found somebody to replace him in that time[.]" Bertoli said that if appellant had not told him he wanted to leave, he would have never hired a replacement, nor would he have "ended [appellant's] employment as of November 25."

On November 25, 2011, Bertoli was not in the office but left a handwritten note for appellant. The note was a notice to appellant of his final discharge because "[they] were caught up." It read

Rich, Friday will be it, we caught up on all the work. I will mail your vacation check as soon as I recover from surgery and get a chance to check on a few things. Give me a number or email I can contact you on if I have any questions. Please leave the phone, keys to the truck, office, garage, credit card, phone charger, all electrical supplies, nipple carriers, drill bits, rt angle drill, threading machine, etc and I will look at everything when I can get back to work. I tried to see you Tuesday but that didn t work out and I am sorry I have to say good bye with a letter. You gave me a lot of good years and I do appreciate our time together. I really hope you have a good life and if you ever think about changing your mind in the future give me about 2 months and I will get the work for you. Sorry I couldn t see you off. I will always remember you. Good luck. Mark Bertoli.

Bertoli's contemporaneous invitation to appellant to return to work someday is consistent with his claim that appellant quit. On the same day, appellant left a handwritten note replying to Bertoli's letter discharging him. In the note, his only concerns were for his tools and payment from Bertoli because of appellant's unused vacation and sick days. He wrote

I have left the phone, Keys, credit card, the electrical supplies left, after the Boilers we have completed, Nipple trays 2 sets of drill bits, Threading Machine. The phone charger Broke and I bought a new one with my own money. There was no tools or cords on the truck when I got it and the right angle drill was mine. I had two on the truck that were mine, along with my hole saws, my hammer drill, my large hammer drill, my sawzolls, circular saw grinder. The Dewalt drill that you replaced in 2009 to replace the one that was mine I used for 7 years was stolen from the job. I bought another one with my money and Bryan Broke it. My sawzoll broke in August while Tito used it. In 9 1/2 years of using all my tools, with all of your employees using them over the years, I have not had you replace anything but a drill, and you act as though I will be stealing from you. I do expect to be paid for two weeks vacation, and the Holiday from January and 2 sick or personal days. If I am not paid for these days I will file a complaint with the Labor Board. You do not get to choose if taking a day off sick or for personal reasons is worthy of payment. I never abused my Days over the years. Never left you stranded and you never required a Doctors note to prove anyone was sick. Rich. I can easily list 12 of your employees who used my tools.

During the first hearing, appellant testified that he had never advised Bertoli that he was leaving on a particular date. He said

[O]n Tuesday October 11th I informed Mark that I was thinking about leaving. I never told him a date, I never told him when . . . I told him that I was thinking about leaving and that I was physically beat up and after 22 years of doing this physical work my body just wasn t recovering anymore. So he told me that I could stay on. I told him I . . . you know, I wanted to take my vacation and I wanted to see how I felt after my vacation, after Christmas and then I would make a decision, you know, how far into 2012 I would be able to make it. He told me "no problem" I could stay as long as I wanted. On Friday October 21st I came into the office and he asked me to step outside with him and I did and he said he had something to tell me. And he informed me that he had hired a replacement that could do everything and anything I could do. And that he was no longer going to need me. I had a company truck that I drove to and from home and to work since 2004, that was part of my pay package, he told me that I would no longer be able to take the truck home because he wasn t going to be able to afford to pay both mechanic . . . me and the new mechanic and he said to me if I didn t ever want to come back to work again I did not have to come back to work again. He said, "You've been with me a long time and I don t want to tell you that you can't come back you can stay as long as you want as long as I have work but if I run out of work you are going to be the one that has to go." That is exactly what he told me. I never . . . I never agreed that I was going to leave. I never gave a date when I was leaving or anything else. That was as far as the conversation went and then on October 24th was when Rich Dean started. He informed me that he wanted me to introduce him to all the builders as my replacement and at that point I knew that, you know, if . . . that my days were numbered there because he had already hired a replacement[.]

After consideration of the evidence, the Appeal Tribunal concluded that appellant had decided to voluntarily leave his employment with Bertoli and found that appellant had, in fact, written the November 4 letter which confirmed that he had given notice of his resignation to Bertoli. While appellant argues he never wrote that letter, the finder of fact reached the opposite conclusion and we have no reason to overturn that finding. As we have already explained, "the reviewing court should give due regard to the opportunity of the one who heard the witnesses to judge [] their credibility." Clowes, supra, 109 N.J. at 587 (alteration in original) (citation and internal quotation marks omitted). Where, as here, an employee gives unequivocal notice of resignation from employment, the employer is entitled to rely upon that notice, and to prepare for the employee's absence. Nicholas v. Bd. of Review, 171 N.J. Super. 36, 38 (App. Div. 1979). Bertoli's effort to address the effect of appellant's notice of resignation upon the business, does not, in our view, warrant overturning the decision of the Board. Consequently, we affirm the Board's determination that appellant quit his job without a sufficient work-related reason and, therefore, is disqualified from benefits under N.J.S.A. 43:21-5(a).2

Affirmed.

1 At this time, appellant also had a part-time job at the County College of Morris (CCM). No one participated in the hearing on behalf of CCM. This is not surprising given that appellant was not seeking anything from CCM, and the only claim he made arose from his discharge from employment with Bertoli on November 25, 2011.

2 The Board did allow appellant credit for unemployment benefits between the date of separation and the end of the year, however.