On appeal from the Final Decision of the Board of Review, Department of Labor, Docket No. 115,414.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Payne and Messano.
Claimant, Adrian Flores, appeals from a final determination of the Board of Review that he left his employment voluntarily without good cause attributable to his work and that he was required to refund unemployment benefits paid in the amount of $13,078.
Following the cessation of Flores's employment as a welder with G&H Sheet Metal Works, Inc. on April 15, 2005, allegedly as the result of a layoff, and submission of a claim for unemployment insurance benefits, such benefits were provided at a weekly rate of $503 from the week ending April 23, 2005 to October 15, 2005. However, in a determination mailed on June 6, 2006, a Deputy of the New Jersey Department of Labor, Division of Unemployment Insurance, found that Flores was disqualified from receipt of benefits because he had left his employment voluntarily, without good cause attributable to the work. See N.J.S.A. 43:21-5(a). The Deputy additionally found that Flores was required to refund $13,078 in unemployment benefits erroneously paid to him. See N.J.S.A. 43:21-16(d).
Flores appealed, and after a hearing conducted on July 17, 2006, at which testimony was provided by Flores and Nancy Heide, the Office Manager for Flores's employer, the Appeal Tribunal determined in a decision, dated July 19, 2006, that Flores was not disqualified for benefits either under N.J.S.A. 43:21-5(a), not having left work voluntarily, or under N.J.S.A. 43:21-5(b), which disqualifies claimants from receipt of benefits if discharged as the result of misconduct connected with the work. The Appeal Tribunal also determined that Flores was not required to refund the benefits previously paid to him.
The employer appealed, arguing that its representative at the hearing had lacked personal knowledge of the facts and, following an order of remand for a new hearing, a further hearing was conducted on September 11, 2006, at which Flores, the President of G&H, Carl Heide, and its Vice-President, Donald Schaffer, testified. After that hearing, on September 15, 2006, the Appeal Tribunal ruled against Flores, finding him disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) and liable for a refund of $13,078 pursuant to N.J.S.A. 43:21-16(d) unless the Director directed otherwise in accordance with N.J.A.C. 12:17-14.2.
Upon further appeal, the decision of the Appeal Tribunal was affirmed in a final decision by the Board of Review dated October 23, 2006. This appeal by Flores followed.
In a pro se brief submitted in support of his appeal, Flores, in essence, argues that the second determination of the Appeal Tribunal, as affirmed by the Board of Review, was against the weight of the evidence; that he did not quit; and that he was instead laid off.
Our review of the record discloses divergent positions by Flores and his employer. Flores claims that, although he had expressed an intent in November 2004 to move, along with his brother, to North Carolina, he had changed his mind by the time that he was laid off on April 15, 2005, as the result of lack of work after his employer lost a big contract. Flores admitted that he had procured North Carolina license plates for his car the month before his employment ceased, but stated that he had done so because his New Jersey driver's license was suspended or revoked.
The employer, on the other hand, contended that Flores never wavered in his intent to leave his New Jersey employment, and that the intent was manifested by Flores's act of obtaining North Carolina license plates, which he had received on March 4, 2005, taking two days off from work as vacation to do so. In response to Flores's claim that he was laid off, the employer testified that Flores had given one or two weeks' oral notice of his departure, and that the employer was required to hire a new welder on April 17, 2005, once Flores left. The existence of a layoff was denied.
Upon review of the evidence presented by Flores and his employer, the Board of Review affirmed the conclusion of the Appeal Tribunal that the employer provided the more credible testimony, and therefore denied eligibility for unemployment benefits pursuant to N.J.S.A. 43:21-5(a) and required refund of the benefits previously paid pursuant to N.J.S.A. 43:21-16(d).
Our review of the action of the Board of Review is limited, requiring us to sustain that action unless it is arbitrary, capricious, or unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the Board's statutory mission. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). In this matter, Flores's challenge is to the sufficiency of the evidence supporting the Board's decision. In this regard, we are required to accept agency fact-finding, so long as the factual conclusions "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and with due regard also to the agency's expertise where such expertise is a pertinent factor." Jackson v. Concord Co., 54 N.J. 113, 117 (1969). We may not substitute our own independent judgment for that of the Board where a mere difference of opinion exists concerning the persuasiveness of the evidence presented. DeVitis v. N.J. Racing ...