THOMAS M. WEIR 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NOT FOR PUBLICATION WITHOUT THE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

THOMAS M. WEIR,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and STONE N COUNTERS SOUTH, LLC,

Respondents.

___________________________________

December 2, 2015

Submitted November 4, 2015 Decided

Before Judges Fisher and Currier.

On appeal from the Board of Review, Department of Labor, Docket No. 006-189.

Thomas M. Weir, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Stone N Counters, LLC, has not filed a brief.

PER CURIAM

Claimant Thomas Weir appeals from a final decision of the Board of Review (Board) affirming the decision of the Appeal Tribunal finding his claim for unemployment benefits invalid pursuant to N.J.S.A. 43:21-5(b) due to his discharge for gross misconduct. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In 2009, Weir began working for Stone N Counters South, LLC, (Stone) as a part-time bookkeeper. Stone stated that they offered a salary of $500 per month. According to Weir, he was to be paid $1000 per month and after the company paid all the required deductions, his net pay would be $500. Weir was also a full-time teacher for the Paterson Board of Education.

In 2013, when it was discovered that Weir had been paying himself $1000 per month instead of $500, he was discharged.1 In addition to paying himself the increased salary, his actions had caused the company to overpay taxes on his behalf, which resulted in the IRS issuing Weir a refund.

Weir applied for benefits based on his employment with Stone. On December 31, 2013, the Division of Unemployment Insurance determined that Weir was ineligible for unemployment benefits because he was discharged for theft by deception, an act of gross misconduct connected to his work. Weir appealed the agency's determination and a telephone interview was held before the Appeal Tribunal.

At the hearing, Weir stated he had no objection to the introduction of the criminal complaint into evidence. On March 11, 2014, the Tribunal found that Weir lacked credibility and affirmed the prior decision, finding that he was disqualified for benefits because he was discharged for gross misconduct. Weir appealed and on July 10, 2014, the Board affirmed the decision of the Appeal Tribunal.

On appeal, Weir argues that there was no evidence of gross misconduct, but instead just a misunderstanding regarding his salary. He also argues that evidence of the criminal complaint should not have been introduced at the hearing because it biased the hearing officer.

Our review is limited. A final decision of an administrative agency should not be disturbed unless it is arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). An appellate court should undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n., 98 N.J. 458, 468 (1985). The findings of the administrative agency should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964) (internal quotations omitted)).

N.J.S.A. 43:21-5(b) governs unemployment benefits when a claimant has been discharged for gross misconduct, which is defined as an act punishable as a crime under the New Jersey Code of Criminal Justice. The claimant has no benefit rights based upon wages from that employer for services rendered prior to the day of discharge. Ibid. Where an employer provides evidence to establish that a claimant was discharged for gross misconduct connected with the work, prosecution or conviction is not required to support the finding. N.J.A.C. 12:17-10.1(f)(1).

We find Weir's arguments to be without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), and affirm for the reasons expressed by the Board.

Affirmed.

1 Criminal charges were brought against Weir under N.J.S.A. 2C:55-4(a), third-degree theft by deception.