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DeGraffenreid v. Board of Review


June 9, 2008


On appeal from the Board of Review, Department of Labor, No. 148,362.

Per curiam.


Submitted May 7, 2008

Before Judges Simonelli and King.

Appellant Gregory DeGraffenreid appeals from a final decision of the Board of Review (Board) that affirmed the Appeal Tribunal's determination that he was disqualified from receiving unemployment compensation benefits under N.J.S.A. 43:21-5(a). We affirm.

The following facts are summarized from the record. Appellant was employed as a warehouse person for Brickforce Staffing (Brickforce), a temporary employment agency. When originally hired, appellant signed an employment agreement, which provided as follows:

I understand and agree that I am an employee of Brickforce Staffing ("Brickforce"), not the company to which I am assigned. In the event I learn that my assignment is about to be terminated, or that my assignment has been terminated, I understand and agree that I am to report to Brickforce immediately for reassignment. In the event that I fail to report for or accept reassignment, it will be deemed a voluntarily [sic] abandonment of, and resignation from my employment with Brickforce, and any application for unemployment benefits will be denied for failure to meet this obligation.

Lastly, I understand that I am applying for a general warehouse and/or office clerical position with hourly rates starting at minimum wage, with travel distances up to 60 miles.

Brickforce assigned appellant to the Cozridge Company (Cozridge) in Bloomfield. Appellant worked Monday through Friday from 7:00 a.m. to 4:00 p.m. He became ill and was out of work for a week beginning November 27, 2006.

Appellant was required to telephone his supervisor, Eladio Gonzalez (Gonzalez), to report an absence. Gonzalez claimed that appellant did not call the entire week and was listed as a "no-call, no-show." Appellant claimed he called once.

Gonzalez also claimed that when he came in to get his paycheck on December 1, 2006, he asked appellant why he did not call. Appellant responded that he was sick. Gonzalez then instructed appellant to return to Cozridge. Appellant did so, but was advised his services were no longer required because he failed to report to work without notifying Brickforce. Gonzalez then offered appellant a job at DSI Company (DSI) in Newark, with the same working hours and pay. Appellant accepted the job, but failed to report on December 4, 2006. As a result, he was terminated.

Appellant claimed that Gonzalez said that the work was slow and that Cozridge was laying off temporary employees, and that Gonzalez never offered him work at DSI. However, appellant admitted that when he visited Cozridge, he observed other temporary employees "busy working." Also, Gonzalez was seeking workers, as it was difficult to secure temporary help during December and January, and Brickforce's plant manager produced weekly manpower reports which showed that work was available for appellant at various job locations.

Appellant filed a claim for unemployment benefits on December 10, 2006. On April 12, 2007, a deputy claim examiner determined that appellant was eligible for benefits. Brickforce appealed. The Appeal Tribunal reversed and determined that appellant was not disqualified for benefits pursuant to N.J.S.A. 43:21-5(c), because he did not refuse to apply for suitable work, but was disqualified pursuant to N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to the work.

Appellant appealed. The Board affirmed the decision of the Appeal Tribunal, but modified the date of disqualification to December 3, 2006. Citing N.J.A.C. 12:17-15.1 and N.J.A.C. 12:17-15.2, the Board found that appellant had executed a valid agreement with a temporary help service firm, that he was offered continuing employment which he failed to accept, and that his leaving work was without good cause attributable to the work within the meaning of N.J.S.A. 43:21-5(a). This appeal followed.

Our role in reviewing an agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging the agency's determination, a claimant carries a substantial burden of persuasion, and the determination by the agency carries a presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983) (citing City of Newark v. Natural Res. Council in the Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980)). We accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996) (citing Merin v. Maglaki, 126 N.J. 430, 436-37 (1992)). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) (citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)).

We will not reverse an agency decision unless it is arbitrary, capricious, or unreasonable, or not supported by substantial credible evidence in the record as whole. In re the Distribution of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001); R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)); In re Taylor, 158 N.J. 644, 656-57 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1990)); Brady, supra, 152 N.J. at 210-11 (citing In re Warren, 117 N.J. 295, 296 (1989)). "The scope of review of an administrative decision is . . . 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Applying these principles, we affirm.

An employee shall be disqualified for benefits:

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

An employee who has left work voluntarily has the burden of proving that he or she "did so with good cause attributable to the work." Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964)); Stauhs v. Bd. of Review, Div. of Employment Sec., 93 N.J. Super. 451, 457 (App. Div. 1967); Morgan v. Bd. of Review, Div. of Employment Sec., 77 N.J. Super. 209, 213 (App. Div. 1962). "While the statute does not define 'good cause,' our courts have construed the statute to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Domenico v. Bd. of Review, Dep't of Labor & Indus., 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, Dep't of Labor & Indus., 158 N.J. Super. 172, 174 (App. Div. 1978)). An employee who leaves work for good, but personal causes, is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213; Self v. Bd. of Review, 91 N.J. 453, 457 (1982). Also, "'[m]ere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily.'" Domenico, supra, 192 N.J. Super. at 288 (quoting Medwick v. Bd. of Review, Div. of Employment Sec., Dep't of Labor & Indus., 69 N.J. Super. 338, 345 (App. Div. 1961)).

Here, the Board's determination that appellant left work without good cause attributable to the work, and that appellant was precluded from unemployment benefits pursuant to a valid written agreement with Brickforce, is amply supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable.



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