TERRY L. DAVIS 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NOT FOR PUBLICATION WITHOUT THE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

TERRY L. DAVIS,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND ACCURATE PRECISION

FASTENERS CORPORATION,

Respondents.

___________________________________

May 12, 2015

Submitted April 22, 2015 Decided

Before Judges Fuentes and O'Connor.

On appeal from the Board of Review, Department of Labor, Docket No. 430,850.

Kevin C. Watkins, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief).

PER CURIAM

In this appeal, Terry L. Davis asks us to reverse the final decision of the Board of Review (Board), which found him disqualified to receive unemployment compensation benefits. The Board upheld the earlier decision of the Appeal Tribunal, which concluded that Davis voluntarily resigned from his job at Accurate Precision Fasteners Corporation (Accurate Precision) as of April 24, 2013, without good cause attributable to the work, and was thus not eligible to receive unemployment compensation benefits under N.J.S.A. 43:21-5(a). After reviewing the record before us, we affirm.

Davis began working in the shipping and receiving department of Accurate Precision on May 16, 2007. He worked Monday through Friday from 7:30 a.m. to 6:00 p.m., at the rate of $14 per hour. At the hearing conducted before the Appeal Examiner, Davis testified that on April 24, 2013, he received a telephone call while at work informing him that his father had passed away in his home state of Mississippi. According to Davis, a moment after receiving this news, he informed the president of Accurate Precision, Michael Jacobs, about his father's passing and told him he would be leaving the next day to attend the funeral. Davis also told Jacobs he was the sole heir of his father's estate, and therefore needed to be absent from work "maybe a couple of weeks" to settle matters related to the estate. According to Davis, he "assured [Jacobs] on many occasions" that he intended to return to work "when everything was finished in Mississippi[.]"

Davis testified that on April 29, 2013, (five days after his father's death), he received a telephone call from the office manager at Accurate Precision asking for his assistance to resolve a technical problem with one of the shipping computers. After Davis answered the work-related question, Jacobs "got on the phone and asked me when I was coming back." Davis testified he told Jacobs that because the funeral had just occurred the previous day, "things were starting to happen, and I had to take care of business." After assuring him of his intention to return to work, Davis said he told Jacobs "[i]t might take a couple of weeks, but I would call him as soon as I was ready to return. And . . . his reply was, 'Okay.'"

In response to the Hearing Examiner's question, Davis confirmed that as of the April 29, 2013 conversation with Jacobs, he still did not have a "specific day" for his return to work. Davis also admitted that he did not call his employer thereafter to provide "updates as to when [he] would be returning to work." Davis also stated he did not have an idea about when he was returning to work and did not call Jacobs to apprise him of this uncertainty.

On May 16, 2013, Davis s wife received the following letter from Jacobs dated May 15, 2013

Dear Terry,

Our condolences on the death of your father.

It has been three weeks since you have left to attend to your father's affairs and we have not heard from you, other than the one call we placed to you. I am assuming that you have abandoned your position here.

I'm afraid we now have no choice but to terminate your health insurance as of May 31, 2013. You have the option to remain on the plan under Cobra law for 18 months after termination, at your own expense. If you would like to do this, I must receive payment for the June premium by May 28th in the amount of $1094.80. Each month thereafter payment must be in by the 25th of the preceding month, payable by cash or certified check.

If you have any questions, please call me.

Regards,

Michael Jacobs

President

Jacobs testified at the Appeal Hearing. He explained that Accurate Precision is a small company and could not afford to keep Davis's position open without any definitive indication of when he planned to return. Jacobs also emphasized Davis did not make any effort to contact him during his three-week absence. In Jacobs's own words: "If he had just let us know what was going on, he could've been working here. But he just totally ignored us."

Given the lack of a definitive notice as to when Davis intended to return, Jacobs testified he had no other choice but to assume he had abandoned the position.

Based on this record, the Appeal Tribunal found Davis did not keep his employer reasonably apprised of his situation while he was in Mississippi and failed to give his employer a definitive date for his return to work. Citing N.J.A.C. 12:17-9.11(a)1, the Appeal Tribunal concluded Davis had voluntarily resigned from his position at Accurate Precision, and was therefore not entitled to unemployment benefits under N.J.S.A. 43:21-5(a). The Board affirmed the Appeal Tribunal's decision. Davis now appeals to this court arguing his employer wrongfully terminated him from his position by ignoring his repeated assurances of his intention to return to work after completing the emotionally difficult task of settling his father's estate. Citing Wade v. Kessler Institute, 343 N.J. Super. 338 (App. Div. 2001), affirmed as modified, 172 N.J. 327 (2002), Davis claims his employer violated an implied covenant of good faith and fair dealing in his oral contract of employment by taking advantage of his personal family tragedy to deprive him of the benefits of his employment.

We disagree. The overwhelming evidence indicates that Accurate Precision treated Davis with respect and gave him a reasonable opportunity to retain his position. By contrast, Davis failed to take any reasonable efforts to keep his employer informed about his intention to return to work.

Our role in this appeal is to apply the standards of review to the Board's decision to deny Davis's application to receive unemployment compensation benefits. The Board is charged with the responsibility of enforcing the laws and regulations governing the disbursement of unemployment benefits. N.J.S.A. 43:21-10(d). Our authority to review the Board's decision is limited to determining whether the agency acted arbitrarily, capriciously, or unreasonably. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In assessing whether the Board acted within the scope of its authority, we consider

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant facts.

[Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 360 (2009) (quoting Brady, supra, 152 N.J. at 211).]

Here, the Board found Davis failed to keep his employer reasonably informed of his activities during the three-week period of time he was absent from work. His vague and indeterminate assurances at the start of his leave of absence of his intention to return to work in "maybe a couple of weeks" were never clarified with more definitive information. The record supports the Board's conclusion that Accurate Precision reasonably inferred Davis decided to abandon his position voluntarily and without good cause attributable to the work. Under these circumstances, Davis was not entitled to receive unemployment compensation benefits. N.J.S.A. 43:21-5(a).

Affirmed.

1 N.J.A.C. 12:17-9.11(a) provides

An employee who is absent from work for five or more consecutive work days and who without good cause fails to notify the employer of the reasons for his or her absence shall be considered to have abandoned his or her employment. Such job abandonment shall subject the employee to disqualification for benefits for voluntarily leaving work without good cause attributable to such work. For purposes of this section good cause means any situation over which the claimant did not have control and which was so compelling as to prevent the employee from notifying the employer of the absence.