ROBERT J. DURISH v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05744-11T1

ROBERT J. DURISH,

Appellant,

v.

BOARD OF REVIEW and PAPER MILL

PLAYHOUSE,

Respondents.

___________________________________

December 16, 2013

Argued September 18, 2013 Decided

Before Judges Nugent and Accurso.

On appeal from the Board of Review, Department of Labor, Docket No. 360,395.

Sanford R. Oxfeld argued the cause for appellant (Oxfeld Cohen, PC, attorneys; Mr. Oxfeld, of counsel; Timothy C. King, of counsel and on the brief).

Christopher J. Hamner, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Hamner, on the brief).

Respondent Paper Mill Playhouse has not filed a brief.

PER CURIAM

Appellant, Robert J. Durish, appeals from the final decision of the Board of Review disqualifying him for benefits from December 12, 2010, and finding him liable to refund $21,592. The Board found that appellant was disqualified for benefits not only because he left work voluntarily without good cause attributable to his work, but also because when he left he was anticipating a temporary layoff of ten weeks or less and had a definite recall date. Both situations disqualify an applicant for benefits. Appellant argues that the Board's decision was incorrect because he had been notified of an impending layoff before he resigned from his employment, and employees who leave work after receiving notice that they will be separated within sixty days are not disqualified for benefits. Having considered appellant's arguments, the record, and controlling law, we affirm.

Appellant worked as a stage hand or assistant prop person for the Paper Mill Playhouse in Milburn from August 1990 through December 18, 2010. The work was not steady and uninterrupted, but depended instead on the number of plays produced at the playhouse during any given year. The stage hands who worked at the shows, including appellant, were members of International Alliance of Theatrical Stage Employees Local 21. When the Paper Mill Playhouse produced a play, its management personnel would contact the union's business manager, Stanley Gutowski, and he would notify union members, who would then work for the duration of the play. When the play ended, the union stage hands would be laid off until the playhouse produced its next play. According to Gutowski, the union members who staffed the plays were considered part-time casual employees.

In December 2010 the Playhouse produced Les Miserables, which ended December 30. The union members "loaded it out" on December 31, 2010, and January 1, 2011. The playhouse produced A Funny Thing Happened On The Way To The Forum in March 2011. Had appellant not resigned effective December 18, 2010, he would have worked through January 1, 2011, and likely would have worked during the production of A Funny Thing Happened On The Way To The Forum as well, because he was the assistant prop man and Gutowski would have called him first to do that job.

Appellant resigned to move to South Carolina. He had sold his house and was scheduled to close on January 20, 2011, which would have permitted him to continue working through January 1, 2011, but the closing on his house was changed to December 20, 2010. Afterappellant's lawyer told him about the new closing date, appellant and his business agent explained the situation to "management" at the Paper Mill Playhouse. Appellant requested permission to leave after December 18, 2010. According to appellant and the business agent, appellant was granted permission to leave and was told there would be no problem with unemployment.

On December 10, 2010, appellant submitted a written resignation by email, which stated:

My house . . . has been sold. The expected closing date is December 20 of 2010. Having no place to stay . . . regrettably, I will not be able to finish the Les Mis run. My last day of work must be December 18[,] 2010. My many years at Paper Mill are memorable one[s]. It is now time to move on. Thanks for everything.

After appellant resigned, he applied for and received unemployment benefits for the weeks ending December 25, 2010, through July 30, 2011, totaling $19,200; and for the weeks ending August 6, 2011, through August 27, 2011, totaling $2,392.

On October 12, 2011, a Deputy Director of the Division of Unemployment Insurance mailed appellant a notice re-determining his eligibility and disqualifying him for benefits from December 19, 2010, because he had left work voluntarily to move out of the area. Appellant was also notified of his liability to refund the benefits he had received. Appellant filed an administrative appeal.

Following a hearing, the Appeal Tribunal determined in a written decision dated February 21, 2012, that appellant was disqualified for benefits as of March 6, 2011, because he left work voluntarily without good cause attributable to his work. The Appeal Tribunal also determined appellant was ineligible for benefits from December 19, 2010 through January 1, 2011. Although the Appeal Tribunal concluded that appellant was not liable for a refund of benefits for the weeks ending January 2, 2011 through March 5, 2011, the Tribunal did conclude that appellant was liable for a refund in the amount of $16,192 for benefits paid for the weeks ending December 19, 2010 through January 1, 2011, and March 6, 2011 through August 27, 2011. Appellant appealed to the Board of Review.

In a decision mailed on June 13, 2012, the Board upheld appellant's disqualification for benefits from December 12, 2010, and determined he was liable to refund $19,200 received as benefits for the weeks ending December 25, 2010 through July 30, 2011; and $2,392 for the weeks ending August 6, 2011 through August 27, 2011. The Board found that appellant had left work to move to another state and concluded that he was disqualified for benefits based on N.J.S.A. 43:21-5, which disqualifies an individual for benefits for the week the individual has left work voluntarily without good cause attributable to such work, and for a specified period of time thereafter. The Board acknowledged that appellant left work two weeks before he would have been laid off, but determined that the layoff was temporary, would have lasted ten weeks or less, and that appellant had a definite recall date. The Board concluded that appellant was disqualified for benefits under N.J.A.C. 12:17-9.9, which states:

If an unemployed individual is on a temporary layoff of up to 10 weeks and has a definite date of recall to work with a former employer and fails to return to such work, he or she shall be subject to disqualification for benefits for voluntarily leaving work.

Appellant appealed from the Board's decision.

Appellant contends that he was not disqualified for benefits because he resigned within sixty days of a pending layoff, as permitted by N.J.A.C. 12:17-9.5, which provides:

If an individual leaves work after he or she is notified by the employer of an impending layoff or discharge, he or she shall be subject to disqualification for benefits unless the individual will be separated within 60 days. For purposes of this section, imminent layoff or discharge is one in which the individual will be separated within 60 days.

Appellant also contends that the Board incorrectly determined that he was on a temporary layoff of up to ten weeks and had a definite date of recall. He argues that his recall date, which was tied to the theatre's production of A Funny Thing Happened On The Way To The Forum, was not "definite."

The Board responds that appellant's return-to-work date was definite, as evidenced by the testimony of his own witness, Gutowski. The Board reasons that because appellant's return date was definite, N.J.A.C. 12:17-9.5 is not applicable. Rather, N.J.A.C. 12:17-9.9, the regulation concerning temporary layoffs, applies to appellant's case. The Board maintains that appellant's layoff was temporary, he had a definite return date, and he was therefore disqualified for unemployment compensation benefits.

The scope of our review is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will not disturb an agency's ruling unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). When we "'review[] 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)). We "must ... give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). 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).

Further, "[a]lthough we are not bound by an agency's interpretation of a statute or its determination of a strictly legal issue[,] the agency's views are entitled to substantial deference because of its duty to administer the subject matter agreeably with the legislative design." Bustard v. Bd. of Review, 401 N.J. Super. 383, 390 (App. Div. 2010) (internal citation and quotation omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).

In the case before us, we begin with the fact that appellant "voluntarily left the work because he was moving to another state for financial reasons." The Appeal Tribunal found such to be the case, the Board affirmed the Appeal Tribunal's finding of fact, and appellant admitted that he resigned from his job to move to South Carolina. In fact, in the e-mail in which he notified the Playhouse that he was resigning, appellant explained that he had sold his house and had no place to stay, so he could not continue to work through the end of the Les Miserables performance. His anticipated layoff following the play's final performance played no role in his decision to resign from his job.

A person who leaves work voluntarily for personal reasons is disqualified for unemployment benefits. The controlling statute, N.J.S.A. 43:21-5(a), states:

An individual shall be disqualified for benefits: . . . (a) 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 eight weeks in employment . . . and has earned in employment at least ten times the individual's weekly benefit rate . . . .

"[A]n employee's separation from employment will be considered 'voluntary' within the intent of N.J.S.A. 43:21-5(a) only if 'the decision whether to go or to stay lay at the time with the worker alone.'" Lord v. Board of Review, 425 N.J. Super. 187, 191 (App. Div. 2012) (quoting Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953)). If an employee leaves work voluntarily, but without good cause attributable to such work, he is disqualified from receiving benefits. The phrase "'good cause attributable to such work' means 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." N.J.A.C. 12:17-9.1(b). An employee who leaves work for "personal reasons, however compelling, . . . is disqualified under the statute." Utley v. Bd. of Review, 194 N.J. 534, 544 (2008). Leaving work to relocate to another area for personal reasons is considered leaving work voluntarily without good cause attributable to such work. N.J.A.C. 12:17-9.1 (e) (6).

Here, it is undisputed that appellant voluntarily left work for personal reasons, a situation which disqualifies him under N.J.S.A. 43:21-5(a) from receiving unemployment benefits. The Board so found, and its decision was not arbitrary, capricious, or unreasonable. We will not disturb it. Brady, supra, 152 N.J. at 210.

Appellant argues that he is qualified for benefits under N.J.A.C. 12:17-9.5, which, as we have noted previously, provides:

If an individual leaves work after he or she is notified by the employer of an impending layoff or discharge, he or she shall be subject to disqualification for benefits unless the individual will be separated within 60 days. For purposes of this section, imminent layoff or discharge is one in which the individual will be separated within 60 days.

He asserts that the Board's decision "is directly contrary to the regulation that protects employees who leave their jobs in anticipation of an imminent layoff from disqualification[.]" We disagree.

Appellant's use of the phrase "in anticipation of an imminent layoff" makes his argument ambiguous. If, on one hand, he means that he left work because he knew he would be laid off after the last performance of Les Miserables, his argument is both unsupported and contradicted by the record. If, on the other hand, he means that he is entitled to benefits because he was aware that he would be laid off within sixty days, even though the layoff was coincidental and entirely unrelated to his decision to leave work for personal reasons, then his argument is unsupported by precedent and contrary to the statute, N.J.S.A. 43:21-5(a).

There is no evidence in the record that the impending layoff following the last performance of Les Miserables had anything to do with appellant's decision to quit work when he did. To the contrary, the evidence, including appellant's own statements, established that he would have worked through that last performance had the closing date on his house not changed.

And as appellant concedes, N.J.S.A. 43:21-5(a) disqualifies for benefits an employee who leaves work voluntarily without good cause attributable to such work. To interpret N.J.A.C. 12:17-9.5 in the manner suggested by appellant as qualifying for benefits an employee who resigns for personal reasons wholly unrelated to an impending layoff would, in such circumstances, nullify the "without good cause attributable to such work" statutory language. Agency regulations can not "alter the terms of a legislative enactment or frustrate the policy embodied in the statute." T.H. v. Div. of Developmental Disabilities, 189 N.J. 478, 491 (2007) (quoting New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm., 82 N.J. 57, 82 (1980)). "If a regulation is 'plainly at odds with the statute, [the court] must set it aside.'" Ibid. (quoting In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004).

Having determined that the Board correctly concluded that appellant left work voluntarily without good cause attributable to such work, and having rejected appellant's argument that he was qualified under N.J.A.C. 12:17-9.5 to receive benefits, we need not address the Board's determination that appellant was also disqualified under N.J.A.C. 12:17-9.9.

When a person has received benefits while disqualified from receiving benefits, the person is liable to repay those benefits in full. N.J.S.A. 43:21-16(d)(1). Accordingly, we affirm the Board's decision in its entirety.