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Pinto v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 23, 2009

JOHN G. PINTO, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND CREST FURNITURE, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 194,568.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 30, 2009

Before Judges Collester and Fall.

Appellant, John G. Pinto, appeals from the September 30, 2008 final decision of the Board of Review, which affirmed the September 17, 2008 determination by the Appeal Tribunal that he was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to such work. We affirm.

Appellant was employed by Crest Furniture, Inc., trading as Value City, as a sales representative from September 2002 to August 2004, and then again from February 7, 2005 through June 1, 2008. On June 22, 2008, appellant filed a claim for unemployment compensation benefits. On July 23, 2008, a Deputy Director of the Division of Unemployment Insurance mailed appellant a determination stating he was disqualified for benefits from June 1, 2008 through July 12, 2008 pursuant to N.J.S.A. 43:21-5(b), because he had been discharged by his employer on June 4, 2008 due to misconduct based on unauthorized absences from work. On or about July 30, 2008, appellant filed an appeal from that decision with the Appeal Tribunal of the Department of Labor and Workforce Development.

An appeals examiner conducted telephonic hearings on August 27 and 28, 2008, taking testimony from appellant; Mary Rose O'Brien, a Human Resources assistant with respondent; and Robert DiFabio, the manager of the store where appellant had been working. It was agreed that in May and June 2008, appellant had been working full-time for respondent on Wednesdays through Sundays, with Mondays and Tuesdays as his days off. He last reported for work on Sunday, June 1, 2008, and was scheduled to work next on Wednesday, June 4, 2008. Ms. O'Brien testified that appellant was considered terminated because he had failed to report to work on June 4, 2008, and never returned. Her records reflected that appellant had also failed to notify the store manager or regional manager concerning his absences, as required by respondent's employee handbook, which appellant had acknowledged receiving on January 5, 2007.

Appellant contended he had telephoned Mr. DiFabio on Wednesday, January 4, 2008, explained that he had been having some personal problems that prevented him from working, and Mr. DiFabio had told him to "take the time that [he] needed." Appellant testified he again telephoned Mr. DiFabio on Friday, January 6, 2008, "just to check in to let him know I was still there and... then [he] told me once again take the time that [he] needed." Appellant stated that on either Sunday, January 8, 2008, or Monday, January 9, 2008, he spoke with a co-worker who informed appellant that he heard that appellant had been fired. Upon inquiry by the claims examiner, appellant admitted that he never contacted Mr. DiFabio or anyone working for respondent to inquire why he had been terminated, and he never returned to work. Appellant also acknowledged that he had received a written warning from respondent dated May 31, 2008, due to tardiness.

Mr. DiFabio testified that during the last conversation he had with appellant, appellant had informed him that he "will be in on Saturday [January 7, 2008] at 1:00 p.m. to work [his] weekend hours because [he] can't afford to lose any more time from work." Mr. DiFabio stated appellant did not report for work on that date, did not call him, and never reported for work thereafter. Appellant denied telling Mr. DiFabio that he would be reporting for work on Saturday, January 7, 2009, but agreed that he had never contacted Mr. DiFabio or anyone else from respondent after hearing from a co-worker that he had been fired, nor did he seek an explanation from his employer for his termination.

On September 17, 2008, a decision from the Appeal Tribunal was mailed to appellant, concluding that appellant was disqualified for unemployment compensation benefits as of June 1, 2008, pursuant to N.J.S.A. 43:21-5(a), because he had left work voluntarily without good cause attributable to his work. The Appeal Tribunal noted that appellant "voluntarily left his job when he assumed he was terminated based on information from a co-worker who did not have the authority to discharge an employee and never returned to work." In conclusion, the Appeal Tribunal stated:

The burden of showing good cause [for leaving his work] under N.J.S.A. 43:21-5 is on the claimant and the test is whether there was "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the rank[s] of the unemployed."

The claimant's leaving of work because he failed to contact the employer after receiving misinformation from his co-worker regarding the rumor that he was discharged based on a no call/no show starting 6/4/2008 through 6/7/2008 and confirming that information is not considered a cause sufficient enough to justify leaving the ranks of the employed to join the ranks of the unemployed.

The claimant never returned to the work place, nor contacted the employer after 6/7/2008, therefore, abandoned the job. The claimant left work without good cause attributable to such work, and is disqualified for benefits under N.J.S.A. 43:21-5(a) as of 6/1/2008.

Appellant filed a timely appeal from the decision of the Appeal Tribunal, and the Board of Review issued its final administrative decision on November 3, 2008, affirming the decision and findings of the Appeal Tribunal. Appellant filed a timely notice of appeal with this court on November 28, 2008.

On appeal, appellant presents the following arguments for our consideration:

CLAIMANT WAS DISQUALIFIED FOR BENEFITS BY EMPLOYER AS A "NO CALL, NO SHOW" STATED IN THEIR INTERVIEW ON AUGUST 27, 2008. HOWEVER, WHEN INTERVIEWING THE MANAGER ON AUGUST 28, 2008, THE EMPLOYER ADMITTED THAT CLAIMANT CALLED NOT ONLY ONCE, BUT TWICE. EMPLOYER FALSIFIED INFORMATION IN FIRST INTERVIEW. THEREFORE, CLAIMANT SHOULD NOT BE DISQUALIFIED FOR BENEFITS.

The scope of our review of administrative decisions is very limited. We will not interfere with the Board's decision unless it is arbitrary, capricious or unreasonable, or is not supported by substantial credible evidence in the record as a whole. Brady v. Board of Review, 152 N.J. 197, 210-11 (1997) (citing Public Serv. Elec. V. New Jersey Dep't of Envtl. Protec., 101 N.J. 95, 103 (1985)). "'In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady, supra, 152 N.J. at 210 (quoting Charatan v. Board of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Brady, supra, 152 N.J. at 210 (quoting Self v. Board of Review, 91 N.J. 453, 459 (1982)).

Applying these standards, we affirm. N.J.S.A. 43:21-5(a) provides, in pertinent part, that an employee shall be disqualified for unemployment compensation benefits "[f]or 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.... " An employee who has left work voluntarily has the burden to establish that he or she "did so with good cause attributable to the work." Brady, supra, 152 N.J. at 218 (citing Zielenski v. Board of Review, 85 N.J. Super. 46, 51 (App. Div. 1964)); Stauhs v. Board of Review, Div. of Employment Sec., 93 N.J. Super. 451, 457 (App. Div. 1967). "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. Board of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Board of Review, Dep't of Labor and Indus., 158 N.J. Super. 172, 174 (App. Div. 1978)). 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 employment." Moreover, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288 (citing Condo, supra, 158 N.J. Super. at 175).

Here, the determination that appellant left work without good cause attributable to the work is amply supported by substantial credible evidence contained in the record as a whole, and is not arbitrary, capricious, or unreasonable. Regardless of the credibility issue as to what was said between appellant and Mr. DiFabio, appellant chose to rely upon an unsubstantiated comment to him by a co-worker concerning his employment status. After hearing the rumor, he never contacted Mr. DiFabio or any other superior to inquire about his status, did provide an explanation to his employer of the circumstances that led to him thereafter not reporting for work, and never returned to work. In light of his contention that during their telephone conversation on Friday, June 6, 2008, Mr. DiFabio had told him "to take the time that [he] needed[]" to work through his personal problems, it is inexplicable that, upon hearing the rumor, appellant would not have sought an explanation from Mr. DiFabio concerning his employment status, particularly in light of his "responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288.

Affirmed.

20091023

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