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Howard v. Board of Review

Decided: April 1, 1980.

ELLEN HOWARD, PLAINTIFF-APPELLANT,
v.
BOARD OF REVIEW, DEPT. OF LABOR AND INDUSTRY, STATE OF NEW JERSEY; DIRECTOR, DIVISION OF UNEMPLOYMENT AND TEMPORARY DISABILITY INSURANCE OF THE DEPT. OF LABOR AND INDUSTRY; AND BILTMORE LAUNDRY SERVICE, DEFENDANTS-RESPONDENTS



On appeal from New Jersey Department of Labor and Industry, Board of Review.

Fritz, Kole and Lane. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

[173 NJSuper Page 197] Claimant appeals from an ultimately adverse determination of her claim for unemployment benefits. On the basis of "no evidence presented to refute [her] statement" of intolerable working conditions, the local claims office determined eligibility

at a weekly rate of $105 commencing June 6, 1978. These benefits were paid at least until the week ending August 24, 1978 and, according to the brief she has filed here, until the time of the decision of the Board of Review (Board) on December 5, 1978. Her employer appealed this decision and the Appeal Tribunal affirmed, after a hearing, holding that claimant was not disqualified from the payment of benefits. Again the employer appealed. The Board held hearings upon two days. It determined that claimant left work voluntarily without good cause attributable to such work and so was disqualified. Reversing the Appeal Tribunal, its decision concluded:

The claimant is disqualified for benefits as of May 25, 1978 under R.S. 43:21-5(a).

She is liable to refund all benefits paid during the period of disqualification.

In addition to appealing the determination of disqualification, claimant expressly challenges the "decision of the Board of Review that she is liable to refund all benefits received" on the ground that such a decision "is void because [it] was not based upon an exercise of discretion by the Director of the Division of Unemployment and Temporary Disability Insurance that a refund should be ordered as is required by N.J.S.A. ยง 43:21-16(d)."

We are satisfied that the determination by the Board that claimant is disqualified for unemployment benefits should not be disturbed. Although its findings are regrettably generalized and imprecise, it is apparent that the Board believed the alleged vulgar and abusive language to have been less offensive than asserted. The findings specifically refer to the denial under oath by the supervisor charged with the language. It is further obvious that the Board also believed claimant's tolerance for two years of whatever the condition was disproved its intolerability and reduced the objection to the nature of a personal complaint. These findings might reasonably have been

reached on sufficient credible evidence in the record and so control. Mayflower Securities v. Bureau of Securities , 64 N.J. 85, 92-93 (1973); Parkview Village Ass'n v. Collingswood , 62 N.J. 21, 34 (1972). The law is clearly established that a voluntary leaving for personal reasons does not constitute good cause attributable to the work and so results in disqualification for benefits. White v. Board of Review , 146 N.J. Super. 268 (App.Div.1977); Stauhs v. Board of Review , 93 N.J. Super. 451 (App.Div.1967). The determination of disqualification is affirmed.

We are persuaded, however, that claimant's challenge to the declaration of her liability for a refund is meritorious. The issue recently came to our attention in Castellucci v. Board of Review , 168 N.J. Super. 301 (App.Div.1979). There claimant asserted that the Appeal Tribunal could not direct the recovery of benefits "because such power was vested by statute exclusively with the Director of the Division of Employment Security." Id. at 308. For reasons there explicated we recognized the right of the Appeal Tribunal to order refunds manifested by its common and theretofore apparently unchallenged exercise of that right in the guise of a determination of liability for the refund. We held argument to the contrary to be "without merit" but remanded for findings regarding that exercise of administrative discretion. Id. at 309-310. We are now convinced that we were wrong in rejecting claimant's argument there.

In the matter before us the Board expressly eschews its and the Appeal Tribunal's "right to order refunds." It predicates this position upon N.J.S.A. 43:21-16(d):

When it is determined by a representative or representatives designated by the Director of the Division of Employment Security of the Department of Labor and Industry of the State of New Jersey that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another, of a material fact (whether or not such nondisclosure or ...


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