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James T. Smith, Sr v. Board of Review

June 28, 2011


On appeal from the Board of Review, Department of Labor, Docket No. 283,414.

Per curiam.


Submitted June 1, 2011

Before Judges Parrillo and Espinosa.

James T. Smith, Sr. appeals from a final decision by the Board of Review that he was ineligible for unemployment benefits because he left work voluntarily without good cause attributable to the work. For the reasons that follow, we affirm.

The salient facts are undisputed and can be summarized as follows.

Smith was hired by Sears Roebuck & Co. (Sears) to be an HVAC technician in May 2004. In September 2009, Sears installed a new national payroll system and there were several instances where technicians were not paid properly when they were cross-training in other jobs. Such a problem occurred for Smith during a period of time in which he was cross-training in refrigeration work. Although he was paid correctly for the hours spent on HVAC work, he was not paid for all hours worked on refrigeration work, apparently due to the fact that his hours were submitted by email. As a result, he was due wages for work performed in September 2009. Sears corrected the problem and restored his wages in October 2009, but the problem recurred in November 2009. Smith stated that for pay periods from November 22, 2009, through January 2, 2010, he was underpaid by $610 for 19.15 hours.

Smith resigned from his employment on January 21, 2010. He had taken a week's vacation in the second week of January. Although he had not earned sufficient vacation time as of that date, Sears erroneously paid him for the week. When the error was discovered, pay for the equivalent of thirty-two hours was deducted from Smith's pay check. Smith testified that, after the underpayments, the final straw was being docked for thirty-two hours of pay.

Smith's employment was subject to a collective bargaining agreement. If he had filed a grievance regarding the wages that were due him and not paid, the union and Sears would have addressed the grievance. However, Smith did not file a grievance, even after his resignation. Approximately one month after his resignation, Smith filed a complaint with the Division of Wage and Hour Compliance. His wage claim was settled and he received a check for back wages in the amount of $610.

In reviewing Smith's claim for unemployment benefits, the Appeal Tribunal found that he resigned because he was docked for unearned vacation time, rather than because of the payroll errors. The Tribunal noted that Smith, a union member, had not given notice to the employer about the payroll errors or pursued any grievance with the union prior to his resignation. The Tribunal reasoned that, since Sears had rectified the prior error involving underpayment of wages, it was "reasonable to expect that the employer would likewise rectify any subsequent errors as well." The Tribunal noted there was "substantial evidence" that Smith "did not bring his complaints about the pay errors to the attention of his district manager." Although Smith was aware of the need to earn vacation time, he admitted in his testimony that he was "ultimately motivated to resign over his discontent with the docking of his vacation pay." The Tribunal therefore found Smith disqualified for benefits under N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to his work.

Smith filed an appeal from the Appeal Tribunal. Based upon the record, the Board of Review affirmed the decision of the Appeal Tribunal.

In this appeal, Smith argues that he should not have been disqualified from benefits because his wage dispute and unsuccessful attempts to correct the dispute constituted good cause attributable to the work.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). In the absence of a "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," the decision will be sustained. In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Furthermore, an appellate court may not substitute its judgment for the fact-finding of an administrative agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). We are bound to defer to the agency's findings of fact "when they could reasonably be made considering the proofs as a whole and with due regard to the opportunity of the one who heard the testimony to assess credibility." Klusaritz v. Cape May County 387 N.J. Super. 305, 313 (App. Div. 2006), certif. denied, 191 N.J. 318 (2007). "'If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.'" Campbell, supra, 169 N.J. at 587 (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

In this case, it is understandable that Smith experienced frustration with his employer's payroll errors. However, as the Appeal Tribunal noted, Sears had rectified the previous error and it is reasonable to infer that, if Smith had brought the subsequent errors to his employer's attention, they would have been rectified as well. The record reflects the absence of any effort to pursue such a claim prior to his resignation and his own admission that the justified docking of his pay for unearned vacation time ultimately led to his resignation. There is, then, no "clear ...

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