DANIEL J. COX v. BOARD OF REVIEW DEPARTMENT OF LABOR, and SAKER SHOPRITES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DANIEL J. COX,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, and SAKER SHOPRITES, INC.,

Respondents.

___________________________________

January 6, 2016

Submitted December 8, 2015 - Decided

Before Judges Fisher and Currier.

On appeal from the Board of Review, Department of Labor, Docket No. 358,907.

Daniel Cox, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Elizabeth A. Davies, Deputy Attorney General, on the brief).

Respondent, Saker Shoprites, Inc., has not filed a brief.

PER CURIAM

Claimant Daniel Cox appeals from a final decision of the Board of Review affirming the decision of the Appeal Tribunal finding Cox's claim for unemployment benefits without merit pursuant to N.J.S.A. 43:21-5(a). After reviewing the record in light of the contentions advanced on appeal, we affirm.

In 2007, Cox began working for Shoprite as a part-time clerk while attending school. After he advised Shoprite in August 2011 that his availability would be limited due to his academic schedule, Cox states he was informed by the human resources manager that he needed to be available additional hours in order to keep the job.

After using accumulated personal days to make up the extra hours and taking a week of vacation, Cox noted that he was not listed on the work schedule. Upon inquiry, Cox was told that he had not committed to work the required twenty hours necessary to be scheduled. Cox did not contact human resources, speak with a member of the union, or make any further efforts to resolve the situation. Instead, Cox filed for unemployment benefits the following day which then resulted in his termination on October 6, 2011.

On October 21, 2011, a determination was mailed to Cox by the Deputy of the Department of Labor finding that Cox was disqualified from benefits as he had left work voluntarily without good cause. Cox appealed the agency's determination, however during the subsequent telephone interview, he was the only witness as the employer could not be reached. The Tribunal reversed the agency's decision, finding that the employer had not produced evidence to contest Cox's allegations; therefore he was not subject to a disqualification under N.J.S.A. 43:21-5(a). After the employer appealed the decision, the matter was remanded to the Tribunal for a hearing and decision on all issues.

Following a telephone hearing on June 12, 2012, in which both parties participated, the Tribunal again reversed the Deputy's initial determination finding that

The claimant was willing to continue working his assigned hours, applying leave time when necessary, when he was discharged after notifying the employer of his limited availability. . . . [T]here is no evidence of the commission of an actual wrong . . . . No disqualification applies under N.J.S.A. 43:21-5(a), as the claimant did not leave the job voluntarily without good cause.

This decision was appealed by the employer, and affirmed for a second time after the employer failed to call in for the hearing and present additional testimony.

The matter was re-opened in July 2013; however, only the employer participated in the subsequent telephone hearing. The Shoprite representative testified as to its policy requiring a minimum of twenty hours per week of its employees, and although they had previously been able to accommodate Cox's academic schedule, he now had advised he was only available two days a week, which placed him below the twenty hour minimum.1 The Tribunal reversed and modified the Deputy's determination stating that Cox's failure to provide available hours in accordance with the employer's policy resulted in a "disregard of the standards of behavior which the employer has a right to expect of his employees and constitutes misconduct connected with the work," disqualifying him for benefits under N.J.S.A. 43:21-5(a). Cox appealed from that decision and the Board again remanded the matter to the Tribunal for a new hearing and decision on all issues.

After both parties participated in a telephone hearing on February 12, 2014, the Tribunal issued a decision disqualifying Cox from unemployment benefits finding

[t]he employer had repeatedly alerted the claimant they required a minimum 20 hours per week excluding those days designated as preferred days subject to time and a half pay. . . . [T]he claimant never communicated a new schedule of availability compatible with the terms of his employment, nor did he address the employer directly or through his union to address the specific issue of his availability and continued employment.

The claimant's contention that he did not intend to leave the work but was discharged by the employer is rejected by the Appeal Tribunal . . . . The employer's testimony that the issue of his availability was raised on numerous occasions and that he was instructed as to the policy requiring a minimum 20 hours is deemed credible. Further, the employer's testimony that the claimant was not placed back on [the] schedule due to the claimant failing to provide a revised schedule of availability is logical and credible.

The Tribunal concluded that Cox's leaving the job, because the employer would not accommodate his change in available hours, was a personal reason and not attributable to the work. Therefore Cox was disqualified for benefits under N.J.S.A. 43:21-5(a). The Board affirmed the Tribunal's determination. This appeal ensued.

Cox contends that he did not make the decision to leave his job, rather management decided to enforce an informal policy requiring twenty hours of employment.

The scope of our review of a determination of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). The findings of the administrative agency should be affirmed if they "'could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole . . . ,' with due regard also to the agency's expertise." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). For those reasons, "[i]f the factual findings of an administrative agency are supported by sufficient credible evidence, [we] are obliged to accept them." Self v. Bd. of Review, 91 N.J. 453, 459 (1982). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

Testimony by the employer revealed that the twenty hour minimum is verbally communicated to all employees. The policy is also posted near the employee time clocks in the store, and is in the union contract. After Cox notified his employer of his availability due to his school schedule, he was advised by the human resource manager of the requirement that employees work a minimum of twenty hours a week.

As the Appeal Tribunal noted in its decision of April 2014, "[t]he claimant was aware his stated availability was inconsistent with the policy stated by the employer." Furthermore, "the claimant never communicated a new schedule of availability compatible with the terms of his employment, nor did he address the employer directly or through his union." The Board confirmed the Tribunal's finding that "the record supports that the claimant was the party that initiated the sequence of events that led to his separation from work. It is undisputed that the claimant compromised his availability for work to his full-time school enrollment, which is a strictly personal endeavor."

The Board correctly determined that Cox was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a). The Tribunal's determination, adopted by the Board, that claimant left work voluntarily, without good cause attributable to the work, is supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable.

Affirmed.

1 Cox was also available to work Sundays, but due to the collective bargaining agreement, it is considered a premium day requiring time and a half pay and is thus rotated amongst the staff. Sunday, therefore, could not be counted toward his twenty hours.