Condo v. Board of Review, Dept. of Labor and Industry

• Decision Date: 20 March 1978
• Docket Number: K-M
• Citation: 158 N.J.Super. 172,385 A.2d 920
• Parties: Robert A. CONDO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY, State of New Jersey, andart Enterprise of New Jersey, Inc., Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 172

158 N.J.Super. 172

385 A.2d 920

Robert A. CONDO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY, State of New Jersey, andK-Mart Enterprise of New Jersey Inc., Respondents.

Superior Court of New Jersey,Appellate Division.

Submitted Jan. 9, 1978.

Decided March 20, 1978.

Thompson & Effner, Haddonfield, for appellant (Jon R. Effner, Haddonfield, of counsel and on the brief).

William F. Hyland, Atty. Gen., for respondent Bd. of Review, Dept. of Labor and Industry (Michael S. Bokar, Deputy Atty. Gen., of counsel, and Max H. Schloff, Deputy Atty. Gen., on the brief).

No one appeared on behalf of respondent K-Mart Enterprise of N. J., Inc.

Before Judges MICHELS, PRESSLER and BILDER.

The opinion of the court was delivered by

MICHELS, J. A. D.

Claimant Robert A. Condo appeals from a decision of the Board of Review affirming a decision of the Appeal Tribunal which held that he was disqualified for unemployment compensation benefits and liable for refund of benefits paid during the period of such disqualification.

Claimant left his employment as a night maintenance man at a store operated by his employer K-Mart Enterprises of New Jersey, Inc. He filed a claim for benefits under the New Jersey Unemployment Compensation Law alleging that he was threatened with physical harm by a coworker and left rather than run the risk of being hurt. The deputy in the local claims office of the Division of Employment Security held him qualified for unemployment compensation benefits. The employer appealed to the Appeal Tribunal. The Appeals Examiner, after hearing testimony from claimant as well as the store's manager and assistant manager, made detailed findings of fact and reversed the determination of the deputy, concluding that:

By the claimant's not further complaining of the co-worker's threats of physical harm, the claimant did not do everything possible to maintain intact the employer-employee relationship. His reasons for leaving did not constitute good cause attributable to such work. Hence, the claimant is disqualified for benefits under R.S. 43:21-5(a) as of August 25, 1976.

Benefits paid during a period of disqualification are recoverable. The claimant is liable for refund in the amount of $480 received as benefits for weeks of September 1, 1976 through September 29, 1976.

Claimant appealed to the Board of Review, which affirmed the decision of the Appeal Tribunal on the record below. Claimant then appealed to this court.

Claimant contends essentially that the evidence fails to support the findings of the Appeal Tribunal that he did not have good cause for voluntarily leaving his employment. Although we appreciate the deference that we are obliged to accord administrative agency factfinding (see Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 92-93, 312 A.2d 497 (1973); Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965); Associated Utility Services v. Board of Review, 131 N.J.Super. 584, 588, 331 A.2d 39 (App.Div.1974)), our review of the record persuades us that claimant had good cause for voluntarily leaving work by reason of the continued threats of physical harm made by his coworker. Therefore, he was entitled to unemployment compensation benefits.

The New Jersey Unemployment Compensation Law (N.J.S.A. 43:21-5(a)), in pertinent part, provides:

For the week in which he has left work voluntarily without good cause attributable to such work, and for each week thereafter until he has earned in employment * * * at least 4 times his weekly benefit rate, as determined in each case; * * *.

While the statute does not define "good cause," our courts have construed the statute to mean " 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed'. " Associated Utility Services, supra at 586, 331 A.2d at 40; Goebelbecker v. State, 53 N.J.Super. 53, 57, 146 A.2d 488 (App.Div.1958). See also, Zielenski v. Board of Review, 85 N.J.Super. 46, 52, 203 A.2d 635 (App.Div.1964); Morgan v. Board of Review, 77 N.J.Super. 209, 213, 185 A.2d 870 [385 A.2d 922] (App.Div.1962). In Krauss v. A. & M. Karagheusian, 13 N.J. 447, 100 A.2d 277 (1953), the Supreme Court, in discussing the meaning of "good cause" as used in N.J.S.A. 43:21-5(a) before the present amendment (made in 1961) which requires good cause for voluntarily leaving to be "attributable to such work," commented * * * The Legislature contemplated that when an individual voluntarily leaves a job under the pressure of circumstances which may reasonably be viewed as having compelled him to do so, the termination of his employment is involuntary for the purposes of the act. In statutory contemplation he cannot then reasonably be judged as free to stay at the job. * * * (Id. at 464, 100 A.2d at 286.)

In our view threats of physical violence directed to an employee from which he may reasonably conclude that his personal safety is endangered...