DOUGLAS O. HURON v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0736-05T50736-05T5

DOUGLAS O. HURON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR

and AMMON MOLD AND TOOL, INC.,

Respondents.

________________________________________________________________

 

Submitted April 3, 2006 - Decided May 24, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from Board of Review, Department of Labor, BR 75,716.

Douglas O. Huron, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Ammon Mold and Tool, Inc. has not filed a brief.

PER CURIAM

Appellant, Douglas O. Huron, appeals the September 2, 2005 decision of the Board of Review affirming the June 17, 2005 decision of the Appeal Tribunal, holding appellant disqualified for unemployment benefits under N.J.S.A. 43:21-5a. We affirm.

Appellant was employed as a machinist from June 20, 1999 until April 29, 2005 for respondent, Ammon Tool and Mold, Inc. (Ammon), a company that operated a six employee tool shop. Appellant worked Monday to Friday, 8:30 a.m. to 4:30 p.m. and earned $15.35 per hour.

Appellant filed a claim for unemployment benefits effective May 1, 2005. On May 24, 2005, the Deputy Director (Deputy), Division of Unemployment and Disability Insurance found appellant eligible for benefits from May 1, 2005. Respondent appealed the Deputy's determination to the Appeal Tribunal on May 26, 2005. At a hearing held by the Appeal Tribunal on June 13, 2005, the following testimony was given.

Appellant testified that on Thursday, April 28, 2005, he told Ammon's general manager, Chris Ammon, that he probably would not be in the next day as he was not "feeling good" due to a badly infected tooth. Nevertheless, he stayed late that day to finish calculating critical dimensions of knock-outs for a mold the company was building.

Appellant stated that he came in on Friday anyway but felt sick almost immediately after reporting. He claims that he made several trips to the bathroom because of feelings of nausea and diarrhea.

Appellant also testified to having a confrontation with Greg, a co-employee, because Greg was grinding an oversized wheel on the grinder without lowering the shield and without using the blower causing appellant to breath grinding dust, which made him sneeze and compounded his feeling of sickness. Although Greg would not take steps to minimize the grinding dust, appellant never complained to a supervisor.

Appellant also noticed that his personal white boom box combination radio-cassette player was missing. None of his co-employees knew what happened to his radio. He, therefore, mentioned his missing radio to Chris Ammon at 11:00 a.m. and also told Chris that he wasn't feeling good and didn't know how long he would be able to stay.

Appellant claims that he thereafter packed up his small tools, cutters, and parallels that he had lying on the top of his tool box on the top of his work bench and put them in his car because his radio had disappeared and he was having trouble with other things disappearing. Appellant contends he went to look for Chris before checking out and when he finally found him in his office, said, "I'm going home, adios," after which he punched out and left.

Appellant admits he did not inform his employer of his dentist appointment for a tooth extraction on Monday, May 2, 2005. He claims that he called on Monday and spoke to Horst Ammon, the owner and secretary/treasurer of the company, and told him he was sick and would not be in. Horst Ammon informed him he did not have a job because "you quit." Appellant asserts he told Horst that he stayed as long as he could, did as much as he could, and then went home sick.

Because his mouth was still swollen on Tuesday from the tooth extraction on Monday, appellant testified that he told Scott Ammon, Chris' brother, that he would not be in that day. Scott agreed to give the message to Chris.

On Wednesday, appellant claims that he felt better and went into work. He noticed that his time card was not there and that there were only time cards for Scott and Steve Ammon. After going into the office to speak to Horst Ammon, appellant claims he was told that as a result of his leaving work on Friday, the company lost a customer because he was not there to help Chris finish a job. Appellant then gathered the rest of his tools and left the premises.

Appellant did not produce a dentist's note corroborating his claimed tooth infection and subsequent extraction. However, his employer had never in the past required a physician's note. He did, however, produce a receipt from Thomas P. Lynch, D.M.D. for $130.

Appellant then produced what he described as a "remanufactured" copy of his weekly worksheet for the week of April 25, the last week he worked. Appellant wrote across this copy, "Steven stole my radio. I do not feel well. Very upset, going home sick." Appellant testified that he knew Steven took his radio because Chris told him and that Steven apologized and explained that he had borrowed it for the weekend. Appellant contends, however, that Steven already "ha[d] at least one or two radios in the shop as it is."

The testimony of Horst and Chris Ammon contradicted appellant. Chris Ammon testified that his office is located within the work area, which is very small and allows him to hear what is said in the shop. On April 29, 2005, Chris contended he heard appellant and Steven yelling about the radio until finally he heard appellant say, "I had enough of this here. I'm leaving. Adios. I'm packing my stuff up. I quit." Chris testified that appellant never advised him that he was ill, or that he had had a problem with Greg. After appellant announced that he had quit, Chris observed that appellant's work area had been cleaned out and that he had removed all of his personal items except two tool boxes.

While maintaining that he left work because of illness, appellant made an entry on his original time sheet on April 29, which mentioned nothing about his being sick. The entry read: "left . . . because of radio gone . . . took by Steve." Appellant's submission to the Appeal Tribunal of the "remanufactured" time sheet, therefore, contained entries that were different from the ones he made on the original sheet contained in the employer's records. Horst Ammon testified that the radio had been given to appellant by Horst's wife but that Steven had taken the radio by mistake to use while fixing up an apartment. Steven borrowed the radio not knowing that the radio had been given to appellant.

The Appeal Tribunal made the following findings of fact:

The claimant was employed as a machinist for the above-named employer from 06/20/99 through 04/29/05. On 04/29/05 the claimant was ill because of an infected tooth. The employer was not aware the claimant was ill. The claimant had a confrontation with a co-worker which he did not report to his supervisor. The claimant noticed his radio (which was given to him by the owner's wife) was missing. The radio was taken by the owner's son in error because he did not realize it was given to the claimant. The claimant became upset about the missing radio. The claimant said he could not take this any more and because he was feeling ill and the missing radio the claimant left. The claimant cleaned his work area, packed up his tools, removed his personal belongings and took them to his car by a company cart. On 05/02/05 the claimant called out ill and was told by the employer he quit on 04/29/05. On 05/03/05 the claimant again called out ill. On 05/04/05 the claimant reported to work and was told there was no more work for him.

In a decision mailed June 17, 2005, the Appeal Tribunal determined:

In this case the claimant left the job voluntarily because of the missing radio. He packed up his tools and left without allowing the employer [to] rectify the situation. The claimant ended the employer-employee relationship when he removed his belongings from the job site. Therefore, the claimant left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 04/24/05 in accordance with N.J.S.A. 43:21-5(a).

On September 2, 2005, the Board of Review affirmed and modified the decision of the Appeal Tribunal. The Board, in its decision, added the following findings: "Additionally, the general manager heard the claimant say that he was quitting his job on April 29, 2005. The claimant did not advise the general manager that he was merely leaving work early due to illness."

The issue is whether appellant has established good cause within the meaning of N.J.S.A. 43:21-5a, thus entitling him to unemployment benefits. The burden of proof rests upon appellant to establish his right to unemployment compensation. See Brady v. Bd. of Review, 152 N.J. 197, 218 (1997).

The New Jersey Unemployment Compensation Law provides in pertinent part that an individual shall be disqualified for benefits:

For the week in which the individual 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 . . . .

[N.J.S.A. 43:21-5a (emphasis added).]

In Domenico v. Board of Review, 192 N.J. Super. 284 (App. Div. 1983), we stated:

While 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. . . .'"

In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. . . . The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.

[Id. at 287-88. (citations omitted).]

Clearly, the factors set forth in Domenico are not evident in this case. The appeals examiner determined that appellant resigned from his job following two incidents involving his co-workers. The chief dispute was over a missing radio. Immediately prior to his leaving work on April 29, and following appellant's argument with Steven Ammon over the radio, he gathered some of his personal belongings, stated that he had had enough and was quitting. Although he claims that he advised Chris Ammon that he was sick the day prior to his resignation, a fact disputed by Chris, appellant admitted that he did not tell Chris he was leaving because he was sick on the day he resigned. Under those circumstances, there was not sufficient cause for appellant to resign his employment within the meaning of N.J.S.A. 43:21-5a.

Appellant claims that he did not quit but left work temporarily due to illness. In an effort to prove his claim, he offered to the appeal examiner a document, which he described as a "remanufactured" time record indicating that he was sick when he left work on April 29. Critically, the time record produced from the employer's files, which appellant had prepared before leaving his employer's premises, contained no such entry, thereby lending support to Chris Ammon's claim that appellant never stated that he was sick when he left work on April 29, 2005.

We are satisfied that the record contains substantial credible evidence supporting the determination of the Appeal Tribunal and the Board of Review that appellant "Quit[] his job on April 29, 2005 and did not advise the general manager that he was merely leaving work early due to illness." See Renan Realty Corp. v. State, Dep't of Cmty. Affairs, Bureau of Hous. Inspection, 182 N.J. Super. 415, 421 (App. Div. 1981) (holding it is not the function of the Appellate Division on review of a determination of an administrative agency to "balance the persuasiveness of the evidence on one side as against the other, but to determine whether a reasonable mind might accept the evidence as adequate to support the conclusion").

We are satisfied that the record supports that appellant's dissatisfaction with his working conditions was not of such a serious nature as to justify his quitting his job within the meaning of N.J.S.A. 43:21-5(a). In all respects, there was no evidence that appellant's job was otherwise unsuitable or that his working conditions were abnormal, intolerable or oppressive. See Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 587-89 (App. Div. 1974). No useful purpose was served under the circumstances present here for appellant to have resigned and joined the ranks of the unemployed, trading fair compensation from employment for no compensation at all. "The judicial capacity to review administrative agency decisions is limited." Brady, supra, 152 N.J. at 210; Public Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985). "Moreover, '[i]n reviewing the factual findings made in an unemployment compensation proceeding, the 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.'" Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Id. at 210; see also In re Warren, 117 N.J. 295, 296 (1989).

We are satisfied that the Board of Review's decision holding appellant disqualified for unemployment benefits, pursuant to N.J.S.A. 43:21-5a, is wholly in accord with the governing statutes and is amply supported by substantial credible evidence in the record.

Affirmed.

 

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A-0736-05T5

May 24, 2006