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Roy A. Wescott v. Board of Review and

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 28, 2012

ROY A. WESCOTT, APPELLANT,
v.
BOARD OF REVIEW AND ACE CRETE PRODUCTS, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 313,757.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 19, 2012 -

Before Judges Parrillo,*fn1 Sabatino and Fasciale.

Roy A. Wescott appeals from a final decision by the Board of Review (the Board), Department of Labor and Workforce Development, upholding an Appeal Tribunal's determination that his claim for unemployment benefits is invalid. We affirm.

Ace Crete Products, Inc. (Ace) employed Wescott as a laborer and then "union man" between September 2006 and June 2009. On November 14, 2010, Wescott filed a claim for unemployment benefits. A Deputy Director (Deputy) for the Division of Unemployment and Disability Insurance determined that Wescott lacked sufficient base year wages or earnings and denied the claim. Wescott appealed the Deputy's determination to the Appeal Tribunal.

The Appeal Tribunal conducted a hearing and Wescott testified that he was unemployed since he resigned from Ace in June 2009. Wescott argued that the Deputy erred by not considering his work history before 2009. The Appeal Tribunal rejected Wescott's request to consider his employment history as irrelevant. Instead, the Appeal Tribunal applied standards enunciated in N.J.S.A. 43:21-4(e)(4), which provides:

An unemployed individual shall be eligible to receive benefits with respect to any week eligible only if:

(4) With respect to benefit years commencing on or after January 7, 2001, except as otherwise provided in paragraph (5) of this subsection, the individual has, during his base year as defined in subsection (c) of [N.J.S.A.] 43:21-19:

(A) Established at least 20 base weeks as defined in paragraphs (2) and (3) of subsection (t) of [N.J.S.A.] 43:21-19; or

(B) If the individual has not met the requirements of subparagraph

(A) of this paragraph (4), earned remuneration not less than an amount 1,000 times the minimum wage in effect pursuant to section 5 of P.L.1966, c.113 ([N.J.S.A.] 34:11-56a4) on October 1 of the calendar year preceding the calendar year in which the benefit year commences, which amount shall be adjusted to the next higher multiple of $100 if not already a multiple thereof.

Applying this statute, the Appeal Tribunal concluded that Wescott was ineligible for benefits because he lacked sufficient base year weeks or base year wages. The Appeal Tribunal stated:

In this case, during the regular base year period (07-01-09 through 06-30-10), on the claim dated 11-[0]4-10, [Wescott] had zero (0) base weeks and earned $0.00 in wages. During the first alternate base year period (10-01-10 through 09-30-10), [Wescott] had zero (0) base weeks and earned $0.00 in wages. During the second alternate base year period [(]01-01-10 through 11-13-10[)], [Wescott] had zero (0) base weeks and earned $0.00 in wages. Thus, his contention is rejected.

The Board affirmed the Appeal Tribunal's decision. This appeal followed.

On appeal, Wescott contends that "[his] entire work history [before June 2009] should be taken into consideration before making a determination on unemployment benefits."

Our role in reviewing a final administrative agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). We must defer to a final agency decision unless it is arbitrary, capricious, unsupported by substantial, credible evidence in the record, or in violation of express or implicit legislative policy. Id. at 656-57. We must, therefore, determine whether the agency's findings "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." Id. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted). If we find sufficient, credible evidence in the record to support the agency's conclusions, then we must affirm even if we would have reached a different result. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981). If, however, our review of the record leads us to conclude that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. In re Taylor, supra, 158 N.J. at 657.

After considering Wescott's arguments and the controlling law, we conclude that the Board's decision upholding the Appeal Tribunal's determination was reasonable, and we see no basis for disturbing it. We affirm substantially for the reasons expressed by the Appeal Tribunal in its January 21, 2011 decision adopted by the Board. We add the following brief comments.

The Appeal Tribunal properly considered Wescott's claim by applying the applicable law. Wescott was unemployed and had no earnings between June 2009 and November 14, 2011, the date of his claim for unemployment benefits. Wescott did not establish twenty base weeks in employment within the normal base year, or either of the two alternative base years, N.J.S.A. 43:21-4(e)4(A); N.J.S.A. 43:21-19(t)(2) (defining "base week"); N.J.S.A. 43:21-19(c)(1) (defining "base year"); nor did he earn "remuneration not less" than $7300, N.J.S.A. 43:21-4(e)4(B); N.J.A.C. 12:15-1.6. Therefore, the Board's affirmance of the Appeal Tribunal's decision, which was consistent with the controlling statutes and regulations, was not arbitrary and is supported by substantial credible evidence in the record.

Affirmed.


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