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Robert H. Still v. Board of Review and Natural Pest Control


June 7, 2012


On appeal from the Board of Review, Department of Labor, Docket No. 296,008.

Per curiam.


Argued March 28, 2012

Before Judges Axelrad and Ostrer.

The principal issue in this appeal is whether an employee quit or was fired after a dispute with his employer over its no- smoking policy. After a hearing, the appeals examiner determined the claimant, Robert H. Still, "left work voluntarily without good cause attributable to the work," N.J.S.A. 43:21-5(a), and was ineligible for unemployment compensation. After the Labor Department's Board of Review (Board) affirmed the Appeal Tribunal's decision, Still appealed. Given our deference to the agency's decision-making, we affirm.


We discern the following facts from the record, which includes a testimonial hearing by telephone on September 29, 2010. Starting in July 2007, Still worked for National Pest Control, Inc. (National) as a full-time pest control technician. He mixed pesticides and rodenticides and applied them at customers' premises. He spent his typical workday on the road in a company truck, traveling from one customer to another.

Still asserted that Michael Sands, National's president, discharged him on July 17, 2010 for refusing to endorse a workplace policy prohibiting smoking in company vehicles. Still was a habitual smoker and admitted that he smoked in his company-provided truck. He explained he would not smoke at customers' premises, nor did the workday allow him sufficient time for smoke breaks. Still asserted there was no company policy prohibiting him from smoking, Sands knew he smoked in his truck and Sands never told Still he could not, until the events leading to Still's departure. After the fifteen-year-old truck Still had used each day broke down, Still was permitted to use Sands's vehicle. When Still returned the vehicle to Sands, it was apparent Still had smoked in the vehicle.

Still asserted that Sands then presented him with a paper stating he would not smoke in company vehicles. Still testified, "he gave me a choice to sig[n] the paper or I couldn't work there." Still refused to sign the paper, and he asserted that Sands terminated him. Still stated he did not intend to leave his job. On the other hand, he stated that if he could not smoke in his vehicle, he would need to take breaks to smoke. Although the breaks were allowed, they would consume two hours a day, and he would be unable to finish his assigned work.

Sands testified Still "walked off the job." He asserted the company had always prohibited smoking in the company's vehicles and he made Still aware of that throughout his employment, although he admitted the policy was not written. He testified, and Still admitted, that nicotine repelled rodents and insects, reducing the effectiveness of rodenticides and insecticides. However, Sands also admitted that nicotine could have a negative impact even if Still smoked outside the vehicle, and then immediately worked with the materials, but Still was not prohibited from smoking outside the vehicle. Sands said the no-smoking-in-company-vehicles policy was also designed to maintain the value of company vehicles.

After Sands discovered that Still had smoked in Sands's vehicle, he told Still he wanted him to sign a company handbook, which included the smoking ban, but which, Sands admitted, he had never distributed to employees. Sands testified that in response, "[Still] walked away. He said [']I'm through.['] Called several employees and told them the same thing. He's through."

Sands testified that Still made no effort to negotiate an accommodation of his smoking.

He didn't say he refused to sign the paper. He didn't say give me another chance[.]

[H]e said[,] [']I'm outta here.['] And he felt as though there wasn't . . . a big financial problem [and] that . . . it would be more of a burden on the business that looked out for him for almost three years.

Sands declined to answer whether he would have discharged Still if he had refused to sign the paper, but did not walk away. On the other hand, Sands testified that if Still had abided by the no-smoking policy, he would have been retained.

Still filed a claim for unemployment benefits, which was initially denied by a Notice of Determination dated August 4, 2010. The notice stated,

There is no evidence that the conditions of your employment were so sever[e] as to cause you to leave available work and become unemployed. Your employer stated that there was to be no smoking in the truck, he did not state that there was to be no smoking.

In the course of your work day, there are plenty [of] opportunities for [a] "smoke break". You did not explore all avenues available before leaving. You are ineligible for benefits.

Since the change in conditions was not substantial, your separation is considered to be a voluntary leaving rather than a refusal of new work. Your reason for leaving does not constitute good cause attributable to the work.

Still appealed. The notice of hearing indicated the hearing would cover the issue whether Still voluntarily quit his job under N.J.S.A. 43:21-5(a). After it became apparent at the beginning of the September 2010 hearing that Still took the position he was discharged, the hearing examiner offered to postpone the hearing, because it was going to cover issues not in the notice. Still's attorney declined postponement and consented to continuing the hearing.

The Appeal Tribunal affirmed the initial denial of benefits in a brief, written decision issued September 29, 2010, finding:

The claimant walked off the job after the employer told him that he shouldn't smoke in the company vehicles, and he was asked to sign the new policy.

The employer's request that the claimant not smoke in the company vehicle, and or sign a new policy was not unreasonable. The claimant left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 7/11/10 in accordance with N.J.S.A. 43:21-5(a).

In April 2011, the Board of Review affirmed the Appeal Tribunal's decision.

On his appeal, Still raises the following points:


1. The failure of the Department of Labor to make minimal factual and legal findings was arbitrary and capricious, [and] violated public policy underlying the purpose for the unemployment benefits law.

2. The Claimant was denied due process because he was not provided adequate notice and because he was not given a fair and unbiased hearing.

a. Due process problems at the Appeal Tribunal.

b. Due process problems at the Board of Review.

c. Due process problems at the Appellate Division.


1. The Claimant credibly testified that the owner of the company terminated his employment. The employer's testimony that the Claimant quit was evasive, and not credible.

2. Even if the Board of Review had ruled that Mr. Still quit, which he did not, the Board erred because any such voluntary quit would have been with good cause attributable to the work.

a. If the Claimant would have been imminently fired if he had not quit, then no disqualification occurs.

b. If a claimant quits because his employer refuses to pay overtime, the claimant is justified to quit.

c. If a claimant is a victim of discrimination, that constitutes good cause for leaving.



Our role in reviewing administrative agency decisions involving unemployment benefits is generally limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to fact-findings if reasonably based on the proofs. Ibid. "'[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its 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)). Thus, the issue is whether the factual findings are supported by sufficient credible evidence. Ibid. In making that determination, we also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).

Nonetheless, a court can intervene if the agency's action was arbitrary, capricious or unreasonable, or it was "'clearly inconsistent with its statutory mission or with other State policy.'" Brady, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Thus, judicial review is confined to determining, first, whether the agency decision offends the State or Federal Constitution; second, whether it violates legislative policies; third, whether the record contains substantial evidence to support the agency decision; and, lastly, whether the agency, in applying legislative policies to the facts, clearly erred in reaching a conclusion that could not reasonably have been made. Id. at 211.

Our decision is also guided by fundamental principles of law governing unemployment compensation. Our State's unemployment compensation law, N.J.S.A. 43:21-1 to 24.30, (Act) is primarily designed to lessen the impact of unemployment that befalls workers without their fault. Id. at 212. "The public policy behind the [Unemployment Compensation] Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989); see also N.J.S.A. 43:21-2 (declaring public interest in addressing the burden of "[i]nvoluntary unemployment"). Therefore, a person who voluntarily quits work for personal reasons, rather than causes attributable to work, is ineligible for benefits. "An individual shall be disqualified for benefits . . . [f]or the week in which the individual has left work voluntarily without good cause attributable to such work . . . ." N.J.S.A. 43:21-5(a).

Application of the "good cause" standard requires a fact-sensitive analysis. Utley v. Bd. of Review, 194 N.J. 534, 550 (2008). "New Jersey courts have construed the phrase to mean cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Brady, supra, 152 N.J. at 214 (quotations and citations omitted). A court must consider what a person with "ordinary common sense and prudence" would do. Ibid. The reasons for leaving must be real and substantial. Ibid. "Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily." Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961) (warm and uncomfortable working conditions not good cause attributable to work). Cf. Domenico v. Bd. of Review, 192 N.J. Super. 284, 287-88 (App. Div. 1983) (reasonable fear of imminent physical harm constituted good cause).

Employees are required to act reasonably to protect their own employment. "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Brady, supra, 152 N.J. at 214 (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)).

Our Supreme Court reminded us that a court must be mindful of the tension created by two sometimes conflicting tasks: to construe the Act liberally to serve the needs of the involuntarily unemployed, and to avoid the award of undeserved benefits that would deplete resources reserved for the Act's intended beneficiaries, stating:

In order to further its remedial and beneficial purposes, the law is to be construed liberally in favor of allowance of benefits. Nonetheless, it is also important to preserve the fund against claims by those not intended to share in its benefits. The basic policy of the law is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases. [Yardville Supply Co., supra, 114 N.J. at 374.]

Consistent with that policy, an employee bears the burden to show that he or she is entitled to unemployment benefits. Brady, supra, 152 N.J. at 218. Also, if an employee has voluntarily left work, he or she also has the burden to show that he or she left not for personal reasons, but for "good cause attributable to work." Ibid.

Applying these principles, we discern no basis to upset the Board's decision. Still challenges the Appeal Tribunal's fact-findings as inadequate, particularly the failure to make explicit credibility findings. We disagree.

We do not invariably require a fact-finder to provide "detailed, subjective analyses of factors such as demeanor and appearance to support credibility determinations[.]" State v. Locurto, 157 N.J. 463, 475 (1999) (affirming municipal court findings). In Locurto, the reasons for the court's relative findings of credibility could be inferred from its decision. Id. at 472. Although the Appeal Tribunal's decision was brief and additional findings would have been preferable, the Appeal Tribunal's findings were sufficient, and, in affirming the Appeal Tribunal's decision, the Board was not required to make any additional findings. See N.J.S.A. 43:21-6(e) (stating that the Board may, in part, "affirm, modify, or set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case").

The factual issue whether Still was terminated, or he left voluntarily, was uncomplicated. Both witnesses testified that Still was asked to sign the policy, and both testified Still refused (although Sands testified that Still's refusal was his non-verbal act of walking away). The two witnesses differed only about what happened after the refusal. Sands testified that Still said, "I'm through," and "I'm outta here"; he told fellow workers he was leaving, and then he left. Still testified that Sands terminated him, but provided no detail as to what precisely Sands said. The Appeal Tribunal implicitly credited Sands's version that Still voluntarily walked off the job. We shall not disturb the Appeal Tribunal's adoption of Sands's version of what happened, which was supported by sufficient credible evidence.

Still argues in the alternative that even if he did quit, he did so for good cause attributable to his work. He does not argue that the enforcement or implementation of a no-smoking policy would have been good cause to voluntarily quit (although, as discussed below, he asserts it violated N.J.S.A. 34:6B-1).*fn1

Instead, he argues that the good cause was imminent discharge, or, alternatively, refusal to pay overtime for the extra hours he allegedly would have had to work to make up for his extended smoke breaks outside his vehicle. We are unpersuaded.

The imminence of layoff or termination must be based on definitive objective facts and not subjective fear. Brady, supra, 152 N.J. at 219. "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." Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997). See also Shuster v. Bd. of Review, 396 N.J. Super. 240, 247 (App. Div. 2007) (reversing denial of benefits where claimant established "real, imminent and substantial risk of losing her job," based on supervisor's statement that claimant should start looking for another job while he searched for a replacement).

Although neither the Appeal Tribunal nor the Board directly addressed this argument, the record evidence would not satisfy the high threshold for establishing imminent discharge. First and foremost, Still did not testify that he quit because he feared imminent discharge; he denied quitting. Second, Sands did not concede that he would have discharged Still if he refused to sign the paper, but did not walk off the job.

Still's alternative argument that if he quit, he did so because of National's refusal to pay overtime also lacks support in the record. There is no evidence that National would not have allowed reasonable smoke breaks outside the vehicle, adjusting Still's daily assignments if necessary. Still did not present evidence that he did "whatever [was] necessary and reasonable in order to remain employed." Brady, supra, 152 N.J. at 214 (quotation and citation omitted).

We also are unpersuaded by Still's argument that National violated N.J.S.A. 34:6B-1, which bars discrimination in the workplace against persons because of their status as tobacco users:

No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee. [N.J.S.A. 34:6B-1.]

The statute does not limit "any applicable laws, rules or workplace policies concerning smoking or the use of other tobacco products during the course of employment." N.J.S.A. 34:6B-2.

Still misconstrues the statute. We do not agree that National must establish a rational basis for its no-smoking-ina-vehicle policy. By its plain language, the statute addresses actions against persons because of their status as tobacco users, but not because of their use of tobacco in the workplace. In any event, Sands established that his policy was rationally based on his interest in maintaining the value of his vehicles, and avoiding the negative impact of nicotine on pesticides and rodenticides. The fact that he could have further controlled that impact by barring smoking outside the vehicle, does not render his limited action irrational.

To the extent not specifically addressed, Still's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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