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Steve C. Conn v. Board of Review


February 7, 2011


On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 237,560.

Per curiam.


Submitted January 25, 2011

Before Judges Graves and Waugh.

Appellant Steven C. Conn (Conn) appeals from a final decision of the Board of Review (the Board), which affirmed the Appeal Tribunal's decision holding him disqualified for unemployment benefits under N.J.S.A. 43:21-5(a), for having left work voluntarily without good cause attributable to the work. We affirm.

The pertinent facts were developed during the Appeal Tribunal hearing on September 14, 2009. Conn testified he was employed by the Brown Shoe Company, Inc. (Brown), as a traveling salesman for approximately twenty-four years until 1994, when he left for four years. Conn returned to work for Brown in 1998. In January 2009, Conn accepted an early retirement separation package, and his last day of work for Brown was on May 1, 2009.

Conn testified that the early separation package was offered to all of Brown's employees due to the economic climate:

Well the end of January the company said due to the economic climate, cut backs were going to be made. They were offering an early separation package with handsome benefits. Then it was stated in the letter to all the employees throughout the company.

After that date, an involuntary separation would come about with a greatly reduced package and then after that, there would be separations if necessary with no benefits.

Conn was never told that his employment would be terminated if he did not accept the voluntary retirement package. Nevertheless, he decided to do so because he was sixty-two years old, the severance package provided "very generous benefits," and "it seemed like the best path to take."

Based on these facts, the Appeal Tribunal determined that Conn did not qualify for unemployment benefits. Conn then appealed to the Board, which mailed its final decision to Conn on September 15, 2009. The Board affirmed the Appeal Tribunal's decision that Conn was disqualified for benefits pursuant to N.J.S.A. 43:21-5(a).

The scope of our review is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). "'[I]n 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.'" Ibid. (quoting Charatan v. Bd. 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.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). Unless the decision "was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Ibid. (citing In re Warren, 117 N.J. 295, 296 (1989)). We can only intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

In this case, the Board determined that Conn was disqualified under N.J.S.A. 43:21-5(a), which provides that a claimant may not receive benefits if he or she "has left work voluntarily without good cause attributable to such work." Although the statute does not define "good cause," "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, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). In addition, the Court has stated:

The test of ordinary common sense and prudence must be utilized to determine whether an employee's decision to leave work constitutes good cause. Such cause must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. A claimant has the responsibility to do whatever is necessary and reasonable in order to remain employed. [Brady, supra, 152 N.J. at 214 (internal quotation marks and citations omitted).]

We recognize that Conn faced a difficult decision. However, he failed to establish that his fear of an imminent discharge was "'based upon definitive objective facts.'" Id. at 219 (quoting Trupo v. Bd. of Review, 268 N.J. Super. 54, 61 (App. Div. 1993)); see also Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997) ("Mere speculation about job stability is insufficient to establish good cause."). Consequently, the Board's decision is supported by substantial credible evidence, and the claim for unemployment benefits was properly denied.



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