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Avis v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 18, 2008

STEVEN J. AVIS, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR; NORTH AMERICAN COMPOSITES COMPANY AND LEE TRANSPORTATION, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, 167,412.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2008

Before Judges Winkelstein and Fuentes.

Appellant Steven J. Avis appeals from the final decision of the Board of Review denying his application for unemployment compensation benefits. The Board found appellant ineligible for benefits because he voluntarily left his employment without good cause attributable to the work. We affirm.

Appellant began working at North American Composites as a truck driver in March 2000. On September 18, 2007, he notified his employer that he was resigning from this position effective two weeks from that date, on September 27, 2007, to start his new job with Lee Transportation. Among the reasons for his decision to leave, appellant testified that he believed he was entitled to a raise from North American based on his seniority. He also testified that he brought to his employer's attention a number of issues with respect to the safety of the truck he drove. When his complaints went unheeded, he decided to accept the position at Lee, where he also expected his salary to be significantly greater than at North American.

The position appellant expected at Lee did not materialize. Confronted with the prospect of unemployment, appellant returned to North American seeking reinstatement. North American declined to rehire him because it had uncovered that he had a criminal record. Appellant applied for unemployment benefits alleging, in part, that he left his employment at North American after his safety complaints were not addressed. Thus, according to appellant, his decision to resign was directly attributable to unsafe working conditions.

The Appeals Tribunal rejected appellant's testimony as a matter of credibility. The Tribunal found that the driving force that led appellant to resign was his dissatisfaction with his salary. The Tribunal found his belief that he was underpaid based on his seniority, coupled with the then availability of a higher paying position with Lee, formed the true basis for his separation from North American. As such, he was not eligible for unemployment benefits. Acting on appellant's application, the Board adopted the Appeals Tribunal's findings, and held appellant ineligible for benefits.

Under N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-9.1(a), an individual is not eligible for unemployment benefits if he or she voluntarily leaves work "without good cause attributable to such work." N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such work" as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." The regulation specifically excludes from the definition of "good cause" leaving work to accept other work. N.J.A.C. 12:17-1.9(e).

Here, the Board found as a matter of fact, that appellant's true motivation for leaving his employment with North American was to accept a higher paying job with another company.

Although appellant testified that he repeatedly complained to his supervisor about the safety of his truck, the Board was not obligated to accept this testimony as credible. Our scope of review of the Board's decision is limited. Brady v. Board of Review, 152 N.J. 197, 210 (1997). We are required to defer to the agency's factual findings as long as they are supported by the record. Ibid. In this light, we discern no legal basis to interfere with the Board's decision.

Affirmed.

20081218

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