JOSEPHE. WAGNER, SR v. BOARD OF REVIEW and C & J CLARK RETAIL, INC

 


                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5217-15T2

JOSEPH E. WAGNER, SR.,

        Appellant,

v.

BOARD OF REVIEW and C & J
CLARK RETAIL, INC.,

     Respondents.
_____________________________

              Submitted January 10, 2018 – Decided July 17, 2018

              Before Judges Fuentes and Koblitz.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 024,002.

              Joseph E. Wagner, Sr., appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent Board of Review (Melissa H.
              Raksa, Assistant Attorney General, of counsel;
              Robert M. Strang, Deputy Attorney General, on
              the brief).

              Respondent C & J Clark Retail, Inc., has not
              filed a brief.

PER CURIAM
      Joseph E. Wagner, Sr., appeals from the July 12, 2016 decision

of   the   Board   of   Review   (Board)   denying   his   application   for

unemployment compensation benefits.        The Board upheld the decision

of the Appeal Tribunal that found appellant is disqualified from

receiving    unemployment    compensation    under   
N.J.S.A.   43:21-5(a)

because he resigned from his position as a salesperson at C & J

Clark Retail, Inc. (Clark), on April 24, 2014.

      This is the second time this matter has come before this

court.     In an order dated May 9, 2016, entered pursuant to Rule

2:8-3(b), this court sua sponte summarily reversed the Board's

March 2, 2015 decision upholding the Appeal Tribunal's decision

that found appellant disqualified from receiving benefits on these

same grounds.      This court remanded the matter for the Board to

determine whether appellant left his position at Clark only after

he refused to accept "new work" which was not suitable because the

remuneration, hours, or other conditions of the work offered were

substantially less favorable.        See 
N.J.S.A. 43:21-5(c).

      The Board entered its remand decision on July 12, 2016.            The

Board determined the findings of fact made by the Appeal Tribunal

were "substantially correct" and again found appellant ineligible

to   receive   unemployment      compensation   benefits   under   
N.J.S.A.

43:21-5(a).    The Board found:



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            [T]he employer needed the claimant to train
            someone else for the key holder position, and
            for   this   reason   the    employer   offered
            [claimant] the temporary transfer to another
            location. This transfer was intended for only
            a short period of time or a few weeks. The
            change in location added 6.5 miles each way
            to the claimant's commute to work.          The
            employer increased the claimant's salary from
            $30,490   to   $33,105    for   accepting   the
            aforementioned temporary transfer.

     Based on these factual findings, the Board held the temporary

change in appellant's work location was not so substantial as to

constitute an offer of "new work."               In this light, the Board

concluded    the    relevant    standard   for      determining   appellant's

eligibility   for    benefits    was   under     
N.J.S.A.   43:21-5(a),     not


N.J.S.A. 43:21-5(c).      The Board concluded that appellant was not

eligible to receive benefits because he resigned from his position

"without providing proper notice and discussing his concerns about

the work with the employer . . . ."

     A   person      is   not    qualified     to     receive     unemployment

compensation benefits if he or she "left work voluntarily without

good cause attributable to such work . . . ."               
N.J.S.A. 43:21-

5(a).    A claimant bears the burden of establishing "good cause."

N.J.A.C. 12:17-9.1(c).     To establish "good cause," a claimant must

prove that he or she left work due to a situation "over which the

claimant did not have control or which was so compelling as to

prevent the claimant from accepting work . . . [T]he claimant must

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have   made   a    reasonable   attempt   to   remove   the    restrictions

pertaining to the refusal."       N.J.A.C. 12:17-11.4.        We also apply

"ordinary common sense and prudence" to determine whether an

employee's decision to leave work constitutes good cause.             Brady

v. Bd. of Review, 
152 N.J. 197, 214 (1997).

       The judiciary's capacity to review the decision of State

administrative agencies is limited.            Pub. Serv. Elec. v. N.J.

Dep't of Envtl. Prot., 
101 N.J. 95, 103 (1985).               The agency's

ruling should not be disturbed unless it is arbitrary, capricious,

or unreasonable. Brady, 
152 N.J. at 210. Here, the Board complied

with our remand order, reexamined the record developed before the

Appeal Tribunal, and found the employer's temporary assignment was

not a "new job offer."     The decision to find appellant ineligible

to receive unemployment compensation benefits is supported by the

record.    We discern no legal basis to disturb it.

       Affirmed.




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