JOSEPH R. JOHANSON v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3209-04T23209-04T2

JOSEPH R. JOHANSON,

Petitioner-Appellant,

v.

BOARD OF REVIEW,

Respondent-Respondent.

________________________________

 

Submitted November 30, 2005 - Decided January 26, 2006

Before Judges Wecker and Fuentes.

On appeal from the Board of Review,

Department of Labor.

Joseph R. Johanson, appellant pro se.

Peter C. Harvey, Attorney General,

attorney for respondent (Michael J. Haas,

Assistant Attorney General, of counsel;

Andrea R. Grundfest, Deputy Attorney General,

on the brief).

PER CURIAM

Petitioner Joseph R. Johanson appeals from the Board of Review's final decision denying his application for unemployment compensation benefits. We affirm.

Petitioner worked as a crane operator for Camden Iron & Metal Inc. from April 13, 2004, to August 26, 2004. One hour into his shift on August 26, 2004, petitioner resigned from his position. In the brief filed in support of this appeal, petitioner provides the following explanation for this decision.

[I] was told that there would be a pay differential because [I] worked the night shift. There was never a pay increase because of the night shift. [I] was also told that there would be a pay increase after [my] 90-day probation period. [I] was never given a pay increase after [this] 90 days of employment. Camden Iron & Metal also commended [me] on a job well done on a daily base [sic]. [I] was also told that [I] would be eligible for health benefits. Several attempts were made to obtain the proper paper work for [my] health insurance. There was never any effort made by the office or supervisors to help rectify the situation. On the day of August 27, 2004 [I] reported to work as scheduled. The crane that [I] was scheduled to use was covered with oil. This made a two story climb impossible. [I] notified Danny Winsel and Harry Hagan to try and rectify the situation. After repeated telephone calls from [my] cell phone on the job site [I] was given no help! Also in the past there were several safety issues that arouse [sic] not only for [me] but also the truck drivers. [I] brought these concerns to the administration but there were no changes.

The Board rejected petitioner's claim that he was constructively discharged from his employment by reason of his unwillingness to use unsafe equipment. The Board arrived at this conclusion after considering the testimony of the employer's representative, who testified that the crane that had been assigned to petitioner on the night he resigned, had been safely operated by another employee during the day shift. Based on these factual findings, the Board concluded that petitioner had left his employment without good cause attributable to the work. N.J.S.A. 43:21-5(a).

The scope of our review of a final decision reached by a State administrative agency is limited. An administrative agency's action is presumed to be valid and reasonable. In re Amendment to Recreation and Open Space Inventory, 353 N.J. Super. 310, 327 (App. Div. 2002). We will reverse the decision "only if it is arbitrary, capricious or unreasonable or if it is not supported by substantial credible evidence in the record as a whole." In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

In this context, the Board was entitled to accept the testimony of the employer's witness as a reliable indication that the "equipment safety" issue was pretextual, used by petitioner only as a means of justifying his impulsive decision to resign from his job. Unfortunately for petitioner, once the resignation is tendered, orally or in writing, an employer is under no obligation to rescind its effect simply because the employee has now changed his or her mind.

The Board was legally entitled to conclude that because petitioner's resignation was not induced by good cause attributable to the work, he is not entitled to receive unemployment compensation benefits.

 
Affirmed.

(continued)

(continued)

4

A-3209-04T2

January 26, 2006