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Daly v. Board of Review and NJ Capital Furnishings

April 9, 2009


On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, 178,684.

Per curiam.


Submitted March 30, 2009

Before Judges R. B. Coleman and Sabatino.

Claimant Amy Daly appeals the Board of Review's final agency decision of July 11, 2008, denying her claim for unemployment benefits. We affirm.

The pertinent facts that emerged in the hearings before the Appeal Tribunal are as follows. Claimant worked as a part-time sales associate for a furniture store in Trenton, NJ Capital Furnishing, Inc. She was earning $15 per hour. The store decided to conduct a liquidation sale, during which time its sales personnel would only be paid by commission. After the sale concluded, the sales force would revert to its prior hourly wages.

Claimant participated in the first several days of the liquidation sale and, at the beginning of the sale, was actually earning more than her prior $15 hourly rate. However, in the last several days of her employment during the sale, claimant left work early and was only paid the minimum wage for her time on the premises. Claimant stopped working on September 17, 2007. The liquidation sale was still continuing, and was scheduled to end on or about October 18, 2007.

Appellant contends that she left the workplace only because the terms of compensation during the liquidation sale were so meager that she was not making enough to pay for her baby-sitting expenses and transportation costs. She contends that she had told the warehouse manager that she would be willing to come back after the liquidation sale ended. She further stated that she left a phone message with the store's general manager, Richard Pollock, requesting his permission to resume work after the sale was over. At the time claimant left her message, Pollock was out of the office on a buying trip.

Pollock testified that he called claimant back two days later and advised her that pulling herself off the work schedule was not acceptable. He also stated to her that the warehouse manager was not in charge of the liquidation sale and had no authority to excuse her from working the sale. Pollock also testified that continuing work was available for claimant, and that her job would not have been in jeopardy if she had not quit during the liquidation sale.

Pollock told claimant that he would call her back if he was interested in re-hiring her after the sale concluded. It is undisputed that he did not do so. Claimant thereafter sought unemployment benefits.

Having considered the testimony of claimant and Pollock, the Appeals Examiner concluded that claimant was disqualified for benefits under N.J.S.A. 43:21-5(a) because she left her job voluntarily without good cause attributable to the work. The Board sustained those findings.

Our standard of review here is limited. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). In matters such as this one involving unemployment benefits, we accord particular deference to the expertise of the Board of Review, and its repeated construction and application of Title 43. See, e.g., Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

Although we appreciate claimant's difficulties with child care and other expenses and also her desire to earn steady and predictable income not contingent on sales commissions, we agree with the Board and the Appeal Tribunal that her reasons for leaving her job do not comprise "good cause attributable to the work" under the controlling statute, N.J.S.A. 43:21-5(a). "Mere 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." Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961). See also N.J.A.C. 12:17-9.1(b).

Claimant's employer had the prerogative to make a temporary change in the manner in which it was conducting its business and compensating its sales force. The record shows that there would have been plenty of work for claimant to continue to perform had she not quit during the liquidation sale. Her decision to stop working during the sale, without the ...

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