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Utley v. Board of Review


January 24, 2007


On appeal from a Final Decision of the Board of Review, Docket No. 98,210.

Per curiam.


Submitted December 4, 2006

Before Judges S.L. Reisner and C.L. Miniman.

Plaintiff John M. Utley was employed on a full-time basis by Myron Manufacturing Corporation as a material handler from October 12, 1982, until November 14, 2005. Initially, he worked an overnight shift from 7:00 p.m. to 5:30 a.m. Plaintiff was and is not able to drive but, because his overnight shift was consistent with the availability of public transportation, he was able to take buses from Paterson to Maywood in the evening to get to work and to return home by bus in the morning.

In February 2005 plaintiff's employer changed his work schedule to a shift starting at 3:30 p.m. and ending at 12:00 a.m. The earlier start time did not affect plaintiff's ability to take buses to work. However, bus transportation from Maywood to Paterson was not available in the very early morning hours. In order to continue working for Myron, plaintiff searched for and found rides home to Paterson with some of his co-workers. This arrangement continued from February 2005 until November 14, 2005.

At that time, the woman with whom plaintiff rode home informed him that she had to return to her country of origin to attend to an ill father. She expected to be gone for about two weeks commencing on November 21, 2005. Plaintiff sought to use vacation time during her absence, but his employer denied his request. As a consequence, plaintiff resigned on November 14, 2005, one week before his co-worker left the country.

Plaintiff sought unemployment benefits, which were denied by the Division of Unemployment and Disability Insurance on the ground that plaintiff voluntarily left his employment. Plaintiff timely appealed to an Appeal Tribunal, which conducted a hearing on January 23, 2006. At the hearing plaintiff testified that he lost his ride, his employer wanted him to work overtime, and there were no buses running. Plaintiff told the Appeals Examiner that his co-worker had to leave the country to attend to her ill father and, as a result, he had no ride home. He explained that he tried to use vacation time, but his request was denied because it was a busy season. He also testified that he tried to find another co-worker to drive him home, but was not successful.*fn1

The Appeals Examiner sustained the denial of benefits on the ground that plaintiff left his work voluntarily without good cause attributable to the work. She found the above facts and relied on N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-9.1(a), (e). The Appeals Examiner concluded that the lack of transportation was not connected to plaintiff's work and, thus, plaintiff was disqualified from benefits. On further appeal to the Board of Review, the Board affirmed the Appeal Tribunal, adopting its reasoning.

On this appeal plaintiff contends that he had good cause under N.J.S.A. 43:21-5(a) to resign from his employment, that the Appeals Examiner failed to properly develop the record, and that the Board of Review did not make adequate findings of fact and conclusions of law.

We begin our consideration of this argument by restating applicable legal principles. The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [George Harms Constr. Co. v. N.J. Tpk.

Auth., 137 N.J. 8, 27 (1994).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on credible evidence in the record and are not manifestly mistaken. Tlumac v. High Bridge Stone, 187 N.J. 567, 573-74 (2006).

The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dept. of Human Servs., Div. of Med. Asst. & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Additionally, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Ibid. (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)).

The governing statute at issue here disqualifies an individual for benefits as follows:

For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.

[N.J.S.A. 43:21-5(a).]

This provision was added to the Unemployment Compensation Law in 1961 to "eliminate the eligibility of persons who leave work for good, but personal, causes." Self v. Bd. of Review, 91 N.J. 453, 456-57 (1982).

Pursuant to rule-making authority, N.J.S.A. 43:21-10, the Executive Director, subject to approval by the Unemployment Compensation Commission, promulgated an administrative regulation respecting N.J.S.A. 43:21-5(a). It provides that "[a]n individual's separation from employment shall be reviewed as a voluntarily leaving work issue where the separation was for the following reasons including, but not limited to . . . [l]ack of transportation." N.J.A.C. 12:17-9.1(e). Ordinarily, when transportation between work and home becomes unavailable resulting in loss of employment, the employee is disqualified for benefits. Self, supra, 91 N.J. at 460; White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977); Morgan v. Bd. of Review, 77 N.J. Super. 209, 214 (App. Div. 1962) (holding that "[c]ommuting is usually considered a problem of the employee.").

Plaintiff contends that this case is not governed by Self but, rather, by Rolka v. Bd. of Review, 332 N.J. Super. 1 (App. Div. 2000). In Self, the employee rode to work with a fellow employee, but when the fellow employee quit his job, the claimant was no longer able to commute to work. We concluded that the inability to obtain transportation was work-related. Self v. Bd. of Review, 182 N.J. Super. 361, 364 (App. Div. 1981) (relying on dictum in Bateman v. Bd. of Review, 163 N.J. Super. 518 (App. Div. 1978)), rev'd, 91 N.J. 453. In reversing and reinstating the agency denial of benefits, our Supreme Court reasoned that the loss of transportation was a personal problem because "the employer did nothing to increase the commuting problems of claimants" and thus, the facts did not fall within the scope of the dictum in Bateman. Self, supra, 91 N.J. at 460.

In Rolka we again relied on the dictum in Bateman. Rolka, supra, 332 N.J. Super. at 4-5. Rolka's employer moved its business from West Orange to Somerset, increasing Rolka's commute from fifteen or twenty minutes to one and a quarter or two hours, which also impacted on her need to arrange child care for her newborn baby. Id. at 3-4. The Board of Review applied Self as a mandatory rule of disqualification. Id. at 5. We held that the Board read Self too broadly and that the facts presented "must be evaluated by weighing the extent to which the employee's reasons for leaving the job . . . bespoke purely personal choices made by the employee." Ibid. We reversed the denial of benefits, and remanded the matter to the Board to "decide whether claimant's job quit was reasonably the product of her employer's choice to relocate and, therefore, attributable to the employer; or whether it was wholly or essentially a reaction to the stresses of claimant's personal life and, therefore, attributable to her." Id. at 6.

Here, plaintiff does not fall under the mantel of Rolka, because he succeeded in commuting to work for almost ten months after his hours were changed to a 3:30 p.m. to 12:00 a.m. shift. His inability to get to home from work in November 2005 was a result of his fellow employee leaving the country to attend to an ill father. This brings his claim for unemployment benefits within the holdings of Self, Bateman, and Morgan v. Bd. of Review, 77 N.J. Super. 209 (App. Div. 1962). Morgan's employer relocated from New York to Fair Lawn. Id. at 210. Prior to the relocation Morgan walked to work in twenty minutes. Ibid. After the relocation her commute increased to in excess of one hour. Id. at 211. She made this commute for three years and eight months before resigning. Id. at 210. Although she applied for Social Security Old Age Benefits and began to receive them when her employment ended, she also sought unemployment benefits, claiming that she was forced to leave her employment due to the excessive travel. Id. at 211. We held:

Here, the commuting was merely one of the conditions of her employment, which she accepted by continuing in the company's employ after the plant was moved. An employee's problem of commuting to and from his work may be considered a good personal reason for leaving his employment, but it is not ordinarily to be considered a cause that is connected with or attributable to the work. Commuting is usually considered a problem of the employee.

[Id. at 214 (citation omitted).]

A change in work schedule that creates a transportation problem must be analyzed in the same fashion as a plant relocation causing a transportation problem. We find no error in the affirmance by the Board of Review of the Appeals Examiner's fact findings and conclusions of law. The loss of transportation home from work for a two-week period was not attributable to plaintiff's work but was entirely personal to him.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the remaining issues presented by plaintiff are without sufficient merit to warrant discussion in this opinion. See R. 2:11-3(e)(1)(D), (E).


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