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Soler v. Board of Review

February 20, 2008

ANA Y. SOLER, APPELLANT,
v.
BOARD OF REVIEW, AND CASTLEFORD TAILORS, LTD., RESPONDENTS.



On appeal from a Final Decision of the New Jersey Department of Labor and Workforce Development, Board of Review, Docket No. 131,317.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2008

Before Judges S. L. Reisner, Gilroy and King.

Claimant Ana Y. Soler appeals from the December 29, 2006, final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's decision holding her disqualified for unemployment benefits, pursuant to N.J.S.A. 43:21-5(a), for having left work voluntarily, without good cause attributable to the work. We reverse and remand.

Claimant was employed by Castleford Tailors, Ltd., as a sewing machine operator from August 8, 2005, through September 6, 2006, after which she applied for unemployment compensation benefits. On October 19, 2006, a Deputy Director of the Division of Unemployment Insurance (Division) found claimant eligible for benefits, determining that she had been terminated from employment because of excessive absenteeism, not for misconduct connected with the work. The employer appealed to the Appeal Tribunal, and a hearing was conducted on December 1, 2006, at which claimant was unrepresented. In the interim, claimant had been receiving unemployment benefits.

On December 4, 2006, the Appeal Tribunal issued its decision, determining claimant ineligible for benefits since September 3, 2006, pursuant to N.J.S.A. 43:21-5(a). "The claimant's separation occurred when the claimant was unable to commit [to a fulltime work schedule] due to the potential of family obligations. Her reason for leaving was personal and not attributable to the work itself." After modifying the Deputy's determination, the Appeal Tribunal remanded the issue of claimant's potential liability to refund benefits already received to the Director for "an initial determination in accordance with established procedure." Claimant appealed to the Board. On December 29, 2006, the Board affirmed the decision of the Appeal Tribunal.

On appeal, claimant argues:

POINT I.

THE UNEMPLOYMENT COMPENSATION LAW IS REMEDIAL LEGISLATION WHICH IS TO BE LIBERALLY CONSTRUED FOR CLAIMANTS AND WHICH IS PROTECTED BY PROCEDURAL DUE PROCESS.

POINT II.

THE FACTUAL FINDINGS AND LEGAL CONCLUSIONS OF THE AGENCY ARE UNSUPPORTED BY AND INCONSISTENT WITH THE COMPETENT, RELEVANT AND REASONABLY CREDIBLE EVIDENCE, AND THE DECISION TO DENY BENEFITS IS CONSEQUENTLY ARBITRARY, CAPRICIOUS, AND UNREASONABLE.

A. THE EVIDENCE IN THE RECORD DEMONSTRATES THAT THE EMPLOYER TERMINATED THE CLAIMANT DUE TO CLAIMANT'S INDICATION THAT SHE PERIODICALLY HAD FAMILY OBLIGATIONS, AS SHOWN BY EMPLOYER TESTIMONY.

B. THE EMPLOYER CHOSE TO HAVE THE TERMINAL CONVERSATION WITH THE CLAIMANT IN ENGLISH, A LANGUAGE SHE CANNOT SPEAK, AND AS A RESULT, IN THE INTEREST OF JUSTICE, EMPLOYER TESTIMONY ON CLAIMANT'S INTENT TO VOLUNTARILY QUIT MUST BE GIVEN NO WEIGHT.

C. THE CLAIMANT WAS PURSUING HER UNION RIGHTS AND CONTINUED EFFORTS TO MAINTAIN HER EMPLOYMENT, EVIDENCE WHICH THE AGENCY OVERLOOKED AND UNDERVALUED SUCH THAT THE DECISION OF THE BOARD OF REVIEW APPEARS TO BE MISTAKEN AND ARBITRARY.

D. THE EMPLOYER ADMITTED THAT THE STANDARD OF WORK BEING MANDATED BY PROMISE WAS NOT A STANDARD TO WHICH ALL ...


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