DANIEL CALABRESE 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NOT FOR PUBLICATION WITHOUT THE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

DANIEL CALABRESE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, and HOLMDEL FOOD, L.L.C.,

Respondents.

____________________________________

August 19, 2016

Submitted August 15, 2016 Decided

Before Judges Reisner and Whipple.

On appeal from the Board of Review, Department of Labor, Docket No. 00011107.

Birdsall & Laughlin, L.L.C., attorneys for appellant (Robert M. Ford, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Arupa Barua, Deputy Attorney General, on the brief).

Respondent Holmdel Food, L.L.C., has not filed a brief.

PER CURIAM

Daniel Calabrese (Claimant), appeals a September 25, 2014 decision of the Department of Labor Board of Review (the Board) affirming the decision of the Appeal Tribunal (the Tribunal), concluding that claimant was ineligible for employment benefits between August 25, 2013, and September 24, 2013, because claimant left work voluntarily without good cause attributable to such work. We affirm.

Claimant was employed by Holmdel Food L.L.C. (Houlihan's) as a server, beginning on April 8, 2013. In August 2013, claimant asserts he verbally informed Houlihan's general manager that he was beginning a career with a union. Claimant subsequently missed several days of work at Houlihan's because of obligations pertaining to his job at the union. Claimant filed a claim for unemployment benefits on August 25, 2013. The Deputy Director of the Division of Unemployment and Disability Insurance concluded that claimant was eligible for benefits without disqualification beginning on August 25, 2013. Houlihan's appealed the determination on April 4, 2014. The Tribunal conducted a telephone hearing on April 22 and 23, 2014 and mailed a decision on April 28, 2014. The Tribunal concluded that claimant was employed by Houlihan's from April 8, 2013 through September 10, 2013, failed to return to work thereafter, abandoned his job and was ineligible for unemployment benefits. The Tribunal found that claimant was not under a threat of termination, and that he was ineligible for benefits received between August 25, 2013 through September 14, 2013 because he was employed during that time. The Tribunal concluded that there was no disqualification for misconduct associated with claimant's work and that he left work voluntarily without good cause attributable to work. Claimant appealed the Tribunal's decision to the Board of Review, which affirmed the Tribunal in a decision mailed on September 25, 2014. This appeal followed.1

During his hearing, claimant testified that, after missing a week of work on the week of August 25, 2013, he called his co-workers and learned that he was no longer on the schedule to work at Houlihan's. Claimant testified that he attempted to call management at Houlihan's, but assumed that he had been terminated because his phone calls were never returned. Claimant stated he never returned to work after August 25, 2013 believing he was fired. He acknowledges that he never clarified his employment status with his employer.

However, witnesses for Houlihan's testified that claimant gave his two weeks' notice on September 3, 2013, indicating his last day of work would be September 17, 2013, but claimant last worked on September 10, 2013. Those witnesses indicated that claimant was scheduled to work on September 13, 14, and 15, 2013, but that he did not appear for work on those days as scheduled. The Tribunal found the employer's witnesses credible.

On appeal, claimant argues that the Tribunal incorrectly determined his employment status between August 25, 2013 and September 14, 2013; and that the Tribunal incorrectly found that claimant voluntarily abandoned work without good cause, arguing that he was discharged. We disagree.

We accord considerable deference not only to an administrative agency's findings of fact and credibility assessments, but to its expertise as well. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). A decision of an administrative agency is disturbed only if it is arbitrary, capricious or unreasonable, or if it is not supported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

After careful consideration of claimant's contentions and the record on appeal, we are satisfied that there is adequate, substantial, and credible evidence to support the Board's determination. The Tribunal determined that claimant left his job on September 10, 2013. The Tribunal's finding is supported by evidence in the record. Under the plain language of N.J.A.C. 12:17-9.1, he is disqualified from benefits.

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

Affirmed.

1 On April 30, 2014, the Division of Unemployment Insurance sent claimant a Request for Refund of $8,303 in unemployment benefits. Claimant had separately appealed the Request for Refund of $8,303 to the Tribunal but that appeal was dismissed without prejudice, as claimant's counsel indicated a desire to await the outcome of the appeal of the disqualification determination. The Appeal Tribunal indicated that the matter of the refund could be re-opened upon claimant's application within 180 days. Hence, we do not address the merits of the refund request, because claimant has not completed his administrative appeal of that decision. Claimant may now ask the Appeal Tribunal to re-open his administrative appeal of the refund request.