February 16, 2011
JOSEPH A. KNOEBL, APPELLANT,
BOARD OF REVIEW, DEPARTMENT
OF LABOR AND ANHEUSER-BUSCH, INC., RESPONDENTS.
On appeal from the Board of Review, Department of Labor, Docket No. 231,457.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2011 - Decided Before Judges C.L. Miniman and LeWinn.
Appellant, Joseph Knoebl, appeals from a final agency decision of the Board of Review (the Board) denying his application for unemployment compensation benefits because Knoebl's appeal from the initial denial of benefits was filed beyond the time provided by N.J.S.A. 43:21-6(b)(1) without a showing of good cause for the late filing.
Knoebl had been employed as an operations manager by respondent Anheuser-Busch, Inc. (Anheuser-Busch) for over twenty-nine years when, in 2008, Anheuser-Busch announced an enhanced retirement program on June 27, 2008. The company sought to reduce the total salaried head count by ten to fifteen percent. It stated in its announcement of the program that:
To help achieve this, some open positions are being eliminated[,] and an enhanced retirement program will be available beginning August 1. Salaried employees who will be 55 or older by Dec. 31, 2008[,] will be offered three years of additional service and age, which will apply to retiree medical eligibility as well. Eligible employees will receive more information on this next month.
The company generated flow charts, one of which was applicable to Knoebl's operations department under the supervision of Senior Manager Stenzel. Certain positions were color-coded yellow for immediate implementation, other positions were color-coded red for implementation within two to four months, and the remaining positions were color-coded green for "in position." Knoebl's position was color-coded green. Of fifty-six employees in the operations department, fourteen took early retirement.
Three of the fourteen were in positions color-coded red, and the other employees were in positions color-coded green.
Knoebl accepted the early retirement package and resigned as of December 1, 2008. Knoebl then filed a claim for unemployment benefits effective January 18, 2009. The Deputy Director of the Division of Unemployment and Disability Insurance (the Division) mailed a determination on February 19, 2009, holding Knoebl disqualified for benefits from November 30, 2008, under N.J.S.A. 43:21-5(a) on the grounds that he left work voluntarily and without good cause attributable to the work.
Pursuant to N.J.S.A. 43:21-6(b)(1), Knoebl had ten days from the date of mailing within which to appeal the decision of the Deputy Director; that is, Knoebl was required to file his appeal on or before March 2, 2009. He did not do so until May 13, 2009, more than two months late.
Nonetheless, the Appeal Tribunal conducted a hearing on September 8, 2009. Several issues were raised by Knoebl in his appeal that are not at issue here. Thus, we limit our discussion of the evidence adduced at the hearing to that relevant to the timeliness of Knoebl's appeal. When asked what he did after receiving the determination of benefits, Knoebl testified that he accepted the determination because he read in the information booklet supplied by the Deputy Director that he was not entitled to benefits because he took early retirement. However, in subsequent conversations with Anheuser-Busch employees who also took early retirement, he learned that some were receiving unemployment benefits even though "they had the same exact early retirement that [Knoebl] did." That caused him to change his mind about accepting the initial determination, and he filed an appeal. He did not learn this information until after the time to appeal expired.
When asked if the company informed Knoebl that his position was going to be eliminated, he responded, "No." However, the company identified thirteen transitional positions, including his. He knew from this that "there was going to be some sort of movement." He said that a lot of the people that did not take the early retirement package were laid off in January. He expressed that it was not fair that some employees could receive unemployment compensation whereas others could not. He knew that, if he did not take the early retirement, he would either be moved out of his position or laid off.
The Appeal Tribunal mailed its decision on September 9, 2009. It found that Knoebl's appeal was untimely and then addressed the issue of good cause as follows:
Good cause exists when it is shown that the delay is due to circumstances beyond the individual's control or for situations which could not have been reasonably foreseen or prevented. In this case, the claimant's decision to appeal several months after receiving the Deputy's determination was based on his own assumption that he had nothing to appeal. The claimant was aware of his appeal rights and did not have good reason for such delay. The appeal was not filed within the established limits and good cause has not been shown for the appeal being filed late. The Tribunal has no jurisdiction to rule on the merits of the appeal. The appeal is dismissed. Additionally, although academic, it does not appear that the Deputy's determination was incorrect or improper.
Knoebl immediately appealed to the Board. It found that "the appeal was properly dismissed in accordance with the provisions of N.J.S.A. 43:21-6(b)(1), the Deputy's determination having become final, and good cause not having been shown for such late filing." Thus, it affirmed the decision of the Appeal Tribunal. This appeal followed.
Knoebl raises the following issue for our consideration:
POINT I - CLAIMANT[ IS] NOT BEING GRANTED UNEMPLOYMENT BENEFITS AFTER RETIRING FROM ANHEUSER-BUSCH AFTER 29 YEARS OF SERVICE AND OVER 59 YEARS OF AGE. CLAIMANT WAS ALSO INFORMED BY OTHER EMPLOYEES WHO RETIRED AT THE SAME TIME THAT THEY FILED AND WERE RECEIVING BENEFITS. THEREFORE CLAIMANT SHOULD NOT HAVE BEEN DENIED OR DISQUALIFIED FROM RECEIV[ING] BENEFITS.
Appellate courts have a limited role in reviewing the decisions of administrative agencies. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Courts will not reverse an agency deci- sion unless it is "'arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 391 (1983)). In Worthington v. Fauver, 88 N.J. 183 (1982), the Court explained:
"Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." [Id. at 204-05 (quoting Bayshore Sewerage Co. v. Dep't Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd o.b., 131 N.J. Super. 37 (App. Div. 1974)).]
Thus, an administrative agency's decision may be disturbed only where it can be demonstrated that its decision is arbitrary or capricious, unsupported in the record, or in violation of express or implicit legislative policies. N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).
In deciding whether an agency ruling is supported by substantial, credible evidence, we are obligated to accord deference to administrative agency fact-finding. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). If we find sufficient credible competent evidence in the record to support the agency's conclusion, then we must uphold the agency's findings. Goodman v. London Metals Exch., Inc., 86 N.J. 19, 29 (1981).
In this case there is no dispute that N.J.S.A. 43:21-6(b)(1) requires that an appeal be filed within ten calendar days after the agency mails the notification of determination. The decision becomes final after that time in the absence of an appeal. Ibid. However, in Rivera v. Board of Review, 127 N.J. 578, 590 (1992), the Court recognized "a good cause" exception to the statutory deadline. Subsequently, the Department of Labor adopted regulations defining the "good cause" standard. N.J.A.C. 12:20-3.1(i). That regulation provides:
A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause exists in circumstances where it is shown that:
1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or 2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented. [Ibid.]
The evidence established at the hearing conducted by the Appeal Tribunal demonstrates that Knoebl was given a sufficient opportunity to demonstrate good cause for his delay and failed to do so. Once his claim for benefits was denied on February 19, 2009, Knoebl could and should have called the other employees who accepted the early retirement package to inquire whether they had obtained unemployment benefits. His failure to make this inquiry until weeks after the denial does not constitute good cause for filing a late appeal. Thus, we are satisfied that the Board's final decision that good cause had not been established was fully supported by the evidence presented. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 54 (App. Div. 1964) ("The test of our judicial review is not whether we would come to the same conclusion if the original determination was ours to make, but rather whether the fact-finder could reasonably so conclude upon the proofs." (citation and internal quotation marks omitted)).
We nonetheless address the merits of Knoebl's appeal, as did the Appeal Tribunal. The public policy behind the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, is to provide "protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989) (citations omitted). The Law provides in pertinent part that an individual is disqualified for 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 . . . and has earned in employment at least six times the individual's weekly benefit rate." N.J.S.A. 43:21-5(a).*fn1
An employee who leaves work voluntarily has the burden to prove that he or she did so for good cause attributable to that work in order to qualify for benefits. Brady, supra, Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962); see also Self v. Bd. of Review, 91 N.J. 453, 457 (1982) ("The effect of the 1961 amendment was to eliminate the eligibility of persons who leave work for good, but personal, causes." (citations omitted)); Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457-58 (App. Div. 1967) (concluding that "good cause" for leaving work must be "'attributable to such work'"). On the other hand, where an employee is out of work "through no fault or act of his own," the employee is entitled to benefits. Schock v. Bd. of Review, 89 N.J. Super. 118, 125 (App. Div. 1965) (quoting Battaglia v. Bd. of Review, 14 N.J. Super. 24, 27 (App. Div. 1951)), aff'd o.b., 48 N.J. 121 (1966).
We have stated that "[w]hile 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, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). We also stated that "[i]n scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Id. at 288 (citations omitted). If the employee voluntarily quits for personal reasons, benefits are not available. See Self, supra, 91 N.J. at 460 (holding that difficulty in getting to work was not good cause attributable to the work); Roche v. Bd. of Review, 156 N.J. Super. 63, 65 (App. Div. 1978) (holding that absence from work due to home living situation disqualifies one from receiving benefits). On the other hand, where the unemployment is the direct result of the employer's conduct rather than the claimant's own choice or personal decision, then, "as a matter of law, the unemployment must be seen to be attributable to the work." Gerber v. Bd. of Review, 313 N.J. Super. 37, 39 (App. Div. 1998).
[A] case raising a genuine issue generally of the type involved here must be evaluated by weighing the extent to which the employee's reasons for leaving the job stemmed from a reasonable response to the employer's conduct against the extent to which those reasons bespoke purely personal choices made by the employee, i.e., not reasonably related to the conditions of employment alone. [Rolka v. Bd. of Review, 332 N.J. Super. 1, 5 (App. Div. 2000) (citation omitted).]
"We have consistently held that causes personal to a claimant and not attributable to the work come within the disqualification of the statute." Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 46 (App. Div. 1979) (citing White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977)); see also Stauhs, supra, 93 N.J. Super. at 457-58; Zielenski, supra, 85 N.J. Super. at 53-54.
As a general proposition, it has long been recognized that where retirement is mandated at a specific age, for example by a collective bargaining agreement, retirees are deemed to have left work involuntarily and are not, therefore, disqualified from benefits. Campell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953). In the absence of compulsory retirement, a decision to retire is voluntary, and the employee is not entitled to benefits. See Bateman v. Bd. of Review, 163 N.J. Super. 518, 520 (App. Div. 1978) (finding that an employee who retired for personal reasons was not entitled to benefits). Where an employee has a subjective fear of impending job termination and accepts retirement, the employee will only be eligible for unemployment benefits if the fear is based upon compelling "definitive objective facts." Trupo v. Bd. of Review, 268 N.J. Super. 54, 61 (App. Div. 1993).
We applied these concepts of voluntariness in Fernandez v. Board of Review, 304 N.J. Super. 603 (App. Div. 1997). There, the employee accepted an early retirement package, and the Board found that he left work voluntarily without good cause. Id. at 605. As here, his employer was in the process of restructuring and he "received a letter indicating that there were 'many more people in [his division] than there [would] be following' the reorganization." Ibid. The company sought voluntary retirements. Ibid.
Fernandez chose to accept the early retirement package and resigned because he believed that the company was "in dire financial straits." Ibid. However, he was never told that his particular job was at risk. Ibid. The Board concluded that the employee had failed to sustain his burden of proof. Id. at 606. We agreed and affirmed because his fear was not based on definitive objective facts, and we could not conclude that "the Board's factual determination to that effect was so wide of the mark that a mistake must have been made." Ibid. (citations omitted). We observed:
Mere speculation about job stability is insufficient to establish good cause. Rather, the surrounding circumstances at the time of voluntarily resigning must demonstrate a lack of suitable continuing work either concurrently or at a discernible and proximate point in time, together with statements or actions of the employer showing a very strong likelihood of imminent layoff. The circumstances must be so compelling as to indicate a strong probability that fears about the employee's job security will in fact materialize, that serious impending threats to his job will be realized, and that the employee's belief that his job is imminently threatened is well founded.
We thus hold that an employee's acceptance of a "severance package" or "early retirement incentive package" bars him from receiving unemployment benefits unless he shows he accepted the package because of a real, imminent, and substantial risk of losing his job. [Id. at 606-07 (citations omitted).]
We have no doubt that the Board would have reached a similar result in this matter had it reached the merits, and we would have affirmed on the merits, as we did in Fernandez. This is so because Knoebl has not demonstrated "a real, imminent, and substantial risk of losing his job." Id. at 607. His position was not color-coded yellow or red, and he admitted he knew only that there would be some sort of "movement." We also note that three of the four managers who received unemployment compensation were in red-coded positions, which would appear to satisfy the test for "a real, imminent, and substantial risk of losing [the employee's] job." Ibid. We cannot comment as to the fourth manager, whose position was color-coded green, as payment of unemployment benefits occurs, with some unfortunate regularity, to persons not entitled to receive them, and the Board, upon discovering the error, has a right to recoup benefits. N.J.S.A. 43:21-16(d)(1).