NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2013
On appeal from the Board of Review, Department of Labor, Docket No. 301, 548.
Fox Rothschild, LLP, attorneys for appellant (Michael Barabander, of counsel and on the briefs; Matthew R. Porio, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).
Respondent Brian Kurlej has not filed a brief.
Before Judges Simonelli and Accurso.
Capitol Wine & Spirits Co. (Capitol) appeals from a final determination of the Department of Labor's Board of Review (Board). The Board determined that claimant Brian Kurlej, an employee of Capitol, was eligible for unemployment benefits for a one week period and that Capitol was liable for benefit charges to its unemployment insurance account pursuant to N.J.S.A. 43:21-7(c)(1) for those benefits. On the basis of "Findings of Fact as developed by the Appeal Tribunal, " the Board affirmed the Appeal Tribunal's determination that Kurlej is eligible for benefits for the week ending August 21, 2010. Because we conclude that the Board's determination is not supported by the record, we reverse.
We draw the facts from the telephone hearing before the Appeals Examiner. Capitol is a wholesale liquor distributor. Kurlej is employed by Capitol as a salesperson. Kurlej's compensation is based entirely on commissions earned on sales. Every year in January and August, New Jersey's liquor wholesalers observe an industry-wide one week shutdown, offices and warehouses close, deliveries cease, and employees are idled. Although entitled to four weeks vacation each year, Kurlej must take two of those weeks during the January and August shutdowns. Capitol's hourly employees receive vacation pay for each of the shutdown weeks. Kurlej, who earns between $110, 000 and $120, 000 per year, is paid a token $100 for the shutdown weeks.
Kurlej initially maintained that he was not permitted to work during the August shutdown week and could not earn any commissions. He testified that "[t]he company does not deliver product to my customers so I can't earn money." Kurlej acknowledged, however, that he earns his commission on payment, not delivery, and that his customers typically pay their bills four to six weeks after he accepts their orders.
While conceding that any order Kurlej would solicit during the shutdown week would not be entered into Capitol's system until the company reopened, Capitol's human resources manager maintained that nothing prevented Kurlej from visiting his accounts and accepting orders for entry the following week. She testified that Kurlej received commission checks during the shutdown week and noted that there was no week in the year in which Kurlej did not receive commission payments.
Kurlej countered that as a result of the shutdown week, "four to five to six weeks later when my customers pay their bills, I am not paid. I generally have no income during . . . that time in August when I'm not committed to come into work." In response to Capitol's claim that he could work if he wished during the shutdown, Kurlej claimed that "[w]orking would be counterproductive because ...