On appeal from the Board of Review, Department of Labor, Docket No. 131,317.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Ostrer.
Whether an employee has quit or been fired is sometimes difficult to discern. As in this case, the question must be decided by evaluating conflicting versions of emotionally charged, and at times, ambiguous interactions between a worker and her employer, in light of the totality of circumstances. After a hearing conducted over four days and involving multiple witnesses, the appeals examiner determined that the claimant, Ana Y. Soler, believed she had been terminated, but that her belief was both erroneous and unreasonable in light of the employer's actions. Consequently, the appeals examiner found that when Soler did not return to work, she "left work voluntarily without good cause attributable to [her] work," N.J.S.A. 43:21-5(a), was ineligible for unemployment compensation, and was required by N.J.S.A. 43:21-16(d) to refund amounts previously paid to her.
After the Labor Department's Board of Review (Board) affirmed the Appeal Tribunal's decision, Soler appealed. Given our deference to the agency's decision-making, we affirm.
Soler worked for Castleford Tailors, Ltd. (Castleford) in Williamstown as a sewing machine operator between August 8, 2005 and September 5, 2006. She worked the 7:00 a.m. to 3:30 p.m. shift. Castleford did not hire part-time workers.
It was undisputed that she had some trouble with absences and tardiness, caused primarily by family responsibilities. She was the mother of a 17-year-old daughter and 15-year-old son. She had recently relocated to New Jersey from Puerto Rico. Her first language was Spanish. She had some difficulty conversing in English, but understood English better than she could speak it. Her daughter had health issues that had required hospitalization. Soler also had a chronic sore throat. Her employer warned her in April 2006 that her attendance needed to improve.
Soler arrived at Castleford late on September 6, 2006. It was her children's first day of school, and she had to obtain bus passes for them. After arriving, Soler spoke to her plant manager Jacqueline Luke and others, ultimately left the premises without performing any duties, and did not return to her work duties any day thereafter. What transpired between Soler and Luke on September 6, 2006 was contested.
Soler testified that she arrived at 9:30 a.m. on September 6, 2006, having previously told her immediate supervisor that she would be late to deal with issues related to her children's first day of school. She claimed that she worked five extra hours on preceding days to make up for the anticipated late arrival. She also claimed she left a message for the plant manager, Jacqueline Luke, alerting her as well that she would be arriving late.
When she arrived, Soler found that her time card was missing. Her supervisor directed her to speak to Luke. They spoke in English, and Soler testified that she understood what Luke was saying because it was basic English. Soler testified that when she asked Luke for her time card, so that she could start working, Luke told her to go home because she was no longer eligible to work for the company, and there was no work for her. Soler testified that she tried to discuss her family responsibilities, but Luke told her she had to work forty hours a week, Soler's family responsibilities were not Luke's concern, and Castleford did not offer part-time work.
Soler testified that she told Luke that she would do everything possible to complete forty hours a week, but that her family would come first; Luke insisted that Soler was not available to work forty hours a week. As Soler testified, the two "went back and forth," with Soler insisting she was available to work full-time, and Luke responding that she was not. Soler asserted that Luke was upset and told her to go home three or four times, although Soler admitted that Luke never used the words "terminated," "fired" or "laid off." Soler testified that she tried to speak to the company president,*fn1 and Luke told her that he was not present, and that Luke would call her for a meeting with him. Soler admitted that she asked Luke for a letter confirming that she was being terminated, but that Luke refused, telling Soler that she was not firing her or laying her off. Soler also admitted that a union representative was not present during the conversation in which Luke told her to go home. Soler testified that she knew that a union representative was supposed to be present when an employee was terminated. However, she also believed that persons were terminated notwithstanding that requirement.
After her first conversation with Luke, Soler testified that she then attempted to speak to her union representative who was employed at the facility, but Luke prevented her from doing so because it interrupted the representative's own work. At that point, according to Soler, Luke was upset and ordered Soler to clean out her locker and take her belongings. According to Soler, Luke escorted Soler to the plant exit. Even though Soler anticipated a meeting with the company president, she understood at that point that she was no longer employed by Castleford.
Two days later, on Friday, September 8, 2006, Soler testified that she returned to Castleford to pick up her pay check and to talk to Luke to explore the possibility of returning to work, but was rebuffed by Luke's secretary. Soler returned again on September 15, 2006 to pick up her last pay check, and again was unable to talk to Luke.
Soler said she tried to talk to her union representatives at the union's offices several times, but was unsuccessful. As she understood that she was being discharged, she claimed that she ultimately determined that the union would be uninvolved. She admitted that she never filed a grievance with the union to try to get her job back. She ultimately applied for unemployment benefits.
McGinn, who was Castleford's vice-president and general manager, testified that Soler had forty-three full-day or part-day absences during her thirteen months with Castleford. Based on a conversation with Luke soon after the incident, he understood that Soler arrived three hours and twenty minutes late on September 6, 2006. After Luke had placed another worker in Soler's position on the production line, there was no work for Soler that day. That is why she was told to go home.
He testified that Luke was not authorized to fire Soler or anyone else. McGinn exercised that authority in conjunction with union representatives. He also testified that he often spoke to Soler in English and they never had difficulty communicating. He conceded that there was no contemporaneous document in Soler's file describing what happened on September 6, 2006. But, Luke drafted a memorandum on February 15, 2007, after the unemployment compensation issue was contested.
McGinn testified that Soler was not on the brink of termination. She was a skilled operator, notwithstanding concerns about her attendance. In fourteen years, few unionized employees were terminated, and the termination process was an extensive one. McGinn agreed that Soler would not have been welcomed back unless she committed to work full-time. On the other hand, when she failed to return to work after September 6, 2006, he concluded that she had voluntarily resigned.
Soler's immediate supervisor, Ralph Calderone, testified that Soler had alerted him the week before Labor Day that she planned to be late September 6, 2006, and he advised her to file the necessary slip of paper. When Soler arrived late, he advised her to retrieve her time card and return to his section to work. However, he saw from afar that she engaged in a conversation with Luke, and did not return to her work station. Calderone testified that at one point, he saw Luke and Soler talking in the presence of the union representative.
Esther Giebel, a sewing machine operator and the union shop steward Calderone identified, testified that she did not have any discussions with Soler on September 6, 2006. Giebel disputed Soler's allegation that Luke prevented Soler from speaking to Giebel. She testified that after Soler left, Luke explained to her that she had sent Soler home for the day because of a lack of work. Giebel described Luke's demeanor as disturbed, but not irate. Giebel also explained that according to standard procedure, after someone was sent home, he or she was expected to call the next day to find out if work became available.
A few days later, Luke informed Giebel that Soler was deemed terminated after she failed to appear for work for three days in row without notice. Giebel confirmed that Luke lacked authority to fire Soler. McGinn was empowered to do that, but only in the presence of a union shop steward like Giebel. She estimated that Castleford terminated four or five employees in the nine years that she served as a shop steward. She also testified that she was unaware of any contacts by Soler with her business agent or other union representatives in an effort to keep her job, until Soler's lawyer reportedly contacted the union two months after the incident, when unemployment compensation benefits were contested.
Luke testified that Soler did not inform her in advance that she would arrive late on the morning of September 6, 2006. By 10:30 a.m., Luke assigned Soler's work to another person in order to keep the production line operating. When Soler arrived, Luke informed her of the substitution on the production line and told her that she needed to commit to working ...