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Utley v. Board of Review

January 24, 2007

JOHN M. UTLEY, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, RESPONDENT-RESPONDENT, AND MYRON MANUFACTURING CORPORATION, RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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