WAYNE E. WALTNER v. BOARD OF REVIEW DEPARTMENT OF LABOR and SONY ELECTRONICS INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3064-09T3

WAYNE E. WALTNER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and SONY ELECTRONICS,

INC.,

Respondents.

_______________________________

June 10, 2011

Submitted May 18, 2011 - Decided

Before Judges Simonelli and Fasciale.

On appeal from the Board of Review, Department of Labor, Docket No. 237,046.

Hope A. Lang, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent Sony Electronics, Inc., has not filed a brief.

PER CURIAM

Appellant, Wayne E. Waltner, appeals from an order of the Board of Review affirming a decision of the Appeal Tribunal that he was disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to the work. We affirm.

Sony Electronics employed Waltner as a technical support engineer for digital photography products from June 3, 1991 through June 1, 2009. Waltner's job duties entailed answering telephone inquiries regarding photography products. In February 2009, Sony offered its employees a retirement package and gave notice that it planned to announce layoffs. Waltner was not named in the layoff announcement. Although Sony cut ninety percent of its funding for digital photography products resulting in a reduction of Waltner's workload, work was available for Waltner to do, and he was never advised that his employment would be terminated or that he would be laid off.

Waltner spoke to his manager regarding whether he should accept the retirement package and his manager advised him that he would take it if he were in Waltner's shoes. Waltner then accepted the retirement package. Of the fifteen technical support engineers, three - - including Waltner - - elected to retire. One engineer transferred and another was laid off. Waltner did not ask Sony about the possibility of continuing to work in a different capacity because he concluded that there were no other positions available.

Waltner filed a claim for unemployment benefits on May 31, 2009. The Deputy Director disqualified him for benefits, finding "your reason for leaving does not constitute good cause attributable to the work." Waltner appealed and the Appeal Tribunal affirmed, finding that Waltner accepted the retirement package and left his job. The Appeal Tribunal concluded that "le[aving] . . . a job through [a] retirement package . . . is not good cause attributable to the work under the law. Furthermore, [Waltner] did not pursue his other options to remain employed . . . ."

The Board affirmed. This appeal followed. On appeal, Waltner contends (1) he was never advised that the Appeal Tribunal would disqualify him for unemployment benefits because he failed to pursue other work, and (2) that he did not voluntarily leave his job, but left with good cause attributable to the work. We disagree.

Our review of an administrative agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] 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)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982). 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). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

An employee is disqualified for benefits:

For 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 four1 weeks in employment. . . .

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

An employee who has left work voluntarily has the burden of proving that he or she "did so with good cause attributable to the work." Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964); Goebelbecker v. State, 53 N.J. Super. 53, 59 (App. Div. 1958)); see also Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457 (App. Div. 1967); Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962); N.J.A.C. 12:17-9.1(c). "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.'" 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)). N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such work" as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment."

An employee who leaves work for personal reasons is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213; Self, supra, 91 N.J. at 457; Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 47-48 (App. Div. 1979). "'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.'" Domenico, supra, 192 N.J. Super. at 288. "'The decision to leave employment must be compelled by real, substantial and reasonable circumstances . . . attributable to the work.'" Shuster v. Bd. of Review, 396 N.J. Super. 240, 244-45 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997)); see also In re N.J.A.C. 12:17-9.6 ex. rel. State Dep't of Labor, 395 N.J. Super. 394, 399-400 (App. Div. 2007). "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288 (citing Condo, supra, 158 N.J. Super. at 175; Zielenski, supra, 85 N.J. Super. at 53-54).

In the context of early retirement, an employee will not be found to have left for good cause attributable to the work unless the "claimants' 'subjective fear [of imminent layoff] was based upon definitive objective facts . . . to buttress [the] belief that [their] job[s] would actually be eliminated in the impending work reduction,' and (2) that claimants would suffer a substantial economic loss." Brady, supra, 152 N.J. at 215 (quoting Trupo v. Bd. of Review, 268 N.J. Super. 54, 61 (App. Div. 1993)); see also Fernandez v. Bd. of Review, 304 N.J. Super. 603, 607 (App. Div. 1997); N.J.A.C. 12:17-9.1(e)8. "[I]mminent layoff or discharge is one in which the individual will be separated within 60 days." N.J.A.C. 12:17-9.5.

We find that the Board's decision was reasonable, and we see no basis for disturbing it. We affirm substantially for the reasons expressed by the Board in its thoughtful and detailed written opinion dated January 8, 2010. We add the following brief comments.

The Board found correctly, by substantial, credible evidence, that Waltner was ineligible for unemployment benefits. Waltner's argument that he never received notice that if he decided to not pursue other work within Sony he could be denied benefits fails, because the Appeal Tribunal denied his claim based on his choice to retire. Although funding was cut for his product line, Waltner was never threatened with the prospect of an imminent termination. Instead, he made a personal decision to voluntarily leave work to secure a beneficial retirement package. The threat or possibility of a layoff is an insufficient basis to trigger the right to receive benefits. Furthermore, there also was no evidence demonstrating that his failure to accept the retirement package would result in a substantial economic loss. Thus, the Board did not act arbitrarily or capriciously, but rather found by substantial, credible evidence that Waltner voluntarily left his employment to secure a retirement package.

A

1 An amendment to N.J.S.A. 43:21-5(a), effective July 1, 2010, substituted "eight weeks" for "four weeks."