FLORIN D. CIMPEAN v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FLORIN D. CIMPEAN,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and CUNNINGHAM

GRAPHICS, INC.

Respondents.

__________________________________

January 28, 2014

Submitted October 2, 2013 Decided

Before Judges Fuentes and Haas.

On appeal from the Board of Review,

Department of Labor, Docket No. 349,879.

Florin D. Cimpean, appellant pro se.

John J. Hoffman, Acting Attorney General,

attorney for respondent Board of Review

(Lewis A. Scheindlin, Assistant Attorney

General, of counsel; Adam Verone,

Deputy Attorney General, on the Brief).

PER CURIAM

Florin D. Cimpean appeals from the decision of the Board of Review denying his application to receive unemployment compensation benefits. The Board affirmed the decision of the Appeal Tribunal, which upheld the initial determination of the Deputy Claims Examiner who found appellant was disqualified to receive unemployment benefits because he had voluntarily left his position as a financial analyst at DG3 North America without good cause attributable to the work pursuant to N.J.S.A. 43:21-5(a). We affirm.

Appellant began his employment at DG3 North America on September 8, 2009. He used the train to commute from his residence in Manhattan to his employer's offices in Jersey City. According to appellant, his employment package included using DG3 North America's shuttle van service to get from the train station to the office. Appellant commuted in this fashion during the first year of his employment.

In October 2010, DG3 North America renewed the collective bargaining agreement (CBA) with the union that represents most, but not all of its employees. Effective November 1, 2010, the new CBA required that all union-affiliated employees be given priority seating in the employer shuttle. Appellant is not a union member. Appellant began to arrive at work late after this policy was implemented, allegedly due to his inability to find a seat on the employer shuttle. His tardiness ranged between a few minutes to forty minutes, and the consistency of his late arrivals were soon noticed by his supervisors. Although appellant claims that he tried to deal with the problem by using a car service that cost him ten dollars per trip, this approach ultimately proved to be cost prohibitive.

Appellant's supervisor, Brian Conte, spoke to him about his tardiness with the hope of coming up with a solution to this problem that would be suitable to both sides. This also proved to be fruitless. Appellant rejected Conte's suggestion, that he should either buy a car or relocate to an apartment closer to his place of employment, as financially unfeasible. According to appellant, he soon began to hear rumors that his tardiness could cause him to lose his job. Despite the steps taken by Conte to work with appellant on this issue, the record shows that no one from management ever told appellant that his job was in jeopardy due to his tardiness.

The record is undisputed, however, that appellant voluntarily resigned from his position effective November 19, 2010. As the transcript of the hearing before the Appeal Tribunal Examiner shows, appellant testified that he gave his employer two weeks prior notice of his resignation, both orally and in writing. When asked what promoted him to take this action, appellant testified that he heard the Senior Director of Finance and "people who are part of the management" say that he "was having problems with the management and [they] were more than likely going to replace me." When pressed to provide the name of the individual and the precise content of what was said to him, appellant indicated that Conte had indicated to him it "was more than likely [he would be] let go if [he] wasn't able to figure out something."

Against this record, the Appeal Tribunal found "no evidence that the employer [asked] the claimant to resign due to attendance problems. The issue in this matter is not a discharge, but a voluntary leaving." The Appeal Tribunal thus found appellant was disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-9.5. Because appellant initially received benefits in the amount of $1,051 for the weeks ending November 27, 2010 and December 4, 2010, the Appeal Tribunal also directed appellant to refund these monies in accordance with N.J.S.A. 43:21-16(d), unless the Director decided otherwise pursuant to N.J.A.C. 12:17-14.2.

The Board of Review affirmed the Appeal Tribunal's decision. Appellant now seeks that we overturn the Board's decision, arguing that his employer's decision to discontinue shuttle van transportation services to non-union employees, together with the lack of suitable alternative public transportation, constitutes good cause attributable to the work under N.J.S.A. 43:21-5(a). We disagree.

We start our analysis by reaffirming the relevant standard of review. Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We "may reverse only if we conclude that the decision of the administrative agency is arbitrary, capricious or unreasonable, or is not supported by substantial credible evidence in the record as a whole." J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div. 2000) (internal citations omitted).

Appellant has the burden to demonstrate that the agency's action was arbitrary, capricious, or unreasonable. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). We are bound to uphold the final decision of an administrative agency if it is supported by substantial evidence in the record. In re Carter, supra, 191 N.J. at 483.

Here, the record shows appellant voluntarily decided to resign from his position at DG3 North America based exclusively on problems he experienced in commuting to work. The employer was not obligated to continue its policy of providing free shuttle service to all employees who use the train as the principal means of commuting to work. Cf. Utley v. Board of Review, 194 N.J. 534, 548 (2008).

Once the employer implemented the policy to prioritize seating in the shuttle to union-affiliated employees, appellant was obligated to find other means of transportation that would enable him to report to work on time or find other suitable employment closer to his place of residence in Manhattan. His decision to resign from his position at DG3 North America under these circumstances constitutes a voluntary choice on his part to seek other employment. See Rolka v. Board of Review, 332 N.J. Super. 1 (App. Div. 2000). Appellant is thus disqualified to receive unemployment compensation benefits under N.J.S.A. 43:32-5(a) and N.J.A.C. 12:17-9.5, and further liable to refund any benefits he received before the Board's final decision upholding the Appeal Tribunal's decision. N.J.S.A. 43:21-16(d)(1).