Self v. Board of Review

Decision Date14 December 1982
Citation453 A.2d 170,91 N.J. 453
PartiesAnnie M. SELF, Claimant-Respondent, v. BOARD OF REVIEW, Respondent-Appellant, and Building Services Corporation of New Jersey, Respondent. Charlotte PATTERSON, Claimant-Respondent, v. BOARD OF REVIEW, Respondent-Appellant, and Building Services Corporation of New Jersey, Respondent.
CourtNew Jersey Supreme Court

Michael J. Haas, Deputy Atty. Gen., for respondent-appellant (Irwin I. Kimmelman, Atty. Gen., attorney; Michael S. Bokar, Deputy Atty. Gen., of counsel).

Cynthia J. Jahn, Trenton, for respondents (Patrick N. Budd, Director, Legal Aid Soc. of Mercer County, Trenton, attorney).

The opinion of the Court was delivered by

POLLOCK, J.

The basic question on these two appeals is whether employees who are unable to get to work because of lack of transportation have "left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). If so, they are not eligible for unemployment compensation. The Board of Review determined that the inability of the employees to obtain transportation was a personal reason for leaving work. Consequently, the Board disqualified them from unemployment compensation benefits. In both cases, the Appellate Division reversed the Board of Review. The opinion of the Appellate Division in Self v. Board of Review is reported at 182 N.J.Super. 361, 440 A.2d 1364 (1981); the Patterson decision is unreported. We reverse the judgments of the Appellate Division in both cases, thereby reinstating the decisions of the Board of Review.

I

Claimants, Charlotte L. Patterson and Annie Marie Self, were employees of Buildings Services Corporation and worked at a corporate facility in Skillman, New Jersey. Patterson was a supervisor and Self was a maintenance worker on the 4:00 p.m. to 12:00 a.m. shift. Self performed cleaning and custodial work and Patterson was a "lead person" whose duties included starting the shift of workers. Both claimants acknowledged that their ability to provide transportation from their homes in Trenton to Skillman, a distance of about 20 miles, was a condition of their employment. Public transportation between Trenton and Skillman was unavailable. Patterson drove Self to work in Patterson's car until the car became inoperable. Thereafter they rode with another employee until December 18, 1979, when that employee quit.

On that date, Patterson and Self called their supervisor, Michael Klank, to say they could not get to work. They called again on December 19 to report their continuing inability to obtain transportation. Thereupon, Klank told them he would have to replace them. On his "termination report," Klank noted that both employees had "quit" and that the reason was "no transportation." That notation is consistent with Patterson's testimony that transportation was available "[u]ntil I got ready to quit in December, December 18."

Although Patterson and Self testified that Klank told them they could go to the Unemployment Office, Klank denied making that statement. Previously Self had left employment with Building Services because of transportation problems, and she had been rehired only after assuring her employer that she had transportation to and from work. Although Building Services was willing to rehire them if they could obtain transportation, claimants acknowledged that transportation was not available. Neither requested a leave of absence, and both have found other employment.

Patterson and Self filed claims for unemployment compensation benefits, but the Deputy of the Division of Employment and Disability Insurance rejected both claims. On appeal within the Division, the Appeal Tribunal conducted a hearing and affirmed the denial of benefits. Similarly, the Board of Review affirmed the decision of the Appeal Tribunal. The Board found that

[t]here is no dispute that both claimants were without transportation to work, hence, it is clear that they could not meet the conditions of employment. No projection was made that their absence from work would be of a short duration. The fact that the employer advised them that they would be replaced if they could not report for work does not alter the fact that the claimants, by their lack of transportation to work, initiated the chain of events which led to their separation.

Underlying that decision was the rule announced by the Appellate Division twenty years ago: "An employee's problem of commuting to and from his work may be considered a good personal reason for leaving his employment, but it is not ordinarily to be considered a cause that is connected with or attributable to the work. Commuting is usually considered a problem of the employee." Morgan v. Board of Review, Div. of Employment Sec., 77 N.J.Super. 209, 214, 185 A.2d 870 (1962).

II

Prior to 1961, N.J.S.A. 43:21-5(a) did not disqualify individuals who left work for good personal reasons from receiving unemployment compensation benefits. As explained in Krauss v. A. & M. Karagheusian, 13 N.J. 447, 464, 100 A.2d 277 (1953): "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." See also Berry, Whitson & Berry v. Division of Employment Sec., Dep't of Labor & Indus., 21 N.J. 73, 120 A.2d 742 (1956). In 1961, however, the Legislature amended the statute to disqualify claimants who leave work "voluntarily without good cause attributable to such work." The effect of the 1961 amendment was to eliminate the eligibility of persons who leave work for good, but personal, causes. See, e.g., Rider College v. Board of Review, 167 N.J.Super. 42, 46, 400 A.2d 505 (App. Div.1979); Morgan v. Board of Review, supra, 77 N.J.Super. at 213, 185 A.2d 870. With the approval of the Appellate Division, the Board of Review has consistently ruled that those who leave work due to transportation difficulties are included in this category of ineligibles. See, e.g., Morgan v. Board of Review, supra, 77 N.J.Super. 209, 185 A.2d 870 (employee quit because she qualified for a pension and because commuting was aggravating; held, the aggravation of commuting was not good cause attributable to her employment); White v. Board of Review, 146 N.J.Super. 268, 369 A.2d 937 (App.Div.1977) (parolee without a car was required as a condition of parole to move to her home 38 miles from her place of employment; held, her commuting problem was personal and she was ineligible for benefits). That interpretation by the agency administering the statute should be accorded great weight by the courts. Peper v. Princeton University Bd. of Trustees, 77 N.J. 55, 69-70, 389 A.2d 465 (1978).

Previously we have held that the purpose of the New Jersey statute "is to differentiate between (1) a voluntary quit with good cause attributable to the work and (2) a voluntary quit without good cause attributable to the work." DeLorenzo v. Board of Review, 54 N.J. 361, 363, 255 A.2d 248 (1969); see Stauhs v. Board of Review, 93 N.J.Super. 451, 457, 226 A.2d 182 (App.Div.1967). From that perspective, a departure not attributable to work is a "voluntary departure without good cause related to work" that will disqualify the employee from receiving unemployment benefits. DeLorenzo v. Board of Review, supra, 54 N.J. at 363, 255 A.2d 248. The only recognized exception to that rule is where an employee is unable to work because of illness and attempts to protect her employment. Id. at 364, 255 A.2d 248. However, the present case does not fit within that exception. Claimants' problem was not a physical inability to work, but the failure to obtain transportation to their place of employment. We are compelled by the statute and the findings of the administrative agency to recognize the termination of their employment as voluntary.

In reviewing similar statutes, a clear majority of courts in other jurisdictions also have concluded that leaving work because of transportation difficulties is a voluntary quit. See, e.g., Tackett v. Administrator, Unemployment Comp. Act, 29 Conn.Supp. 251, 282 A.2d 582 (Conn.Super.1971); Gray v. Dobbs House, Inc., 171 Ind.App. 444, 357 N.E.2d 900, 905 (1976); Toothaker v. Maine Employment Sec. Comm'n, 217 A.2d 203 (Me.1966); Hill v. Contract Beverages, Inc., 307 Minn. 356, 240 N.W.2d 314, 316 (1976); Putnam v. Department of Employment Sec., 103 N.H. 495, 175 A.2d 519 (1962); Moya v. Employment Sec. Comm'n, 80 N.M. 39, 450 P.2d 925, 926 (1969). Cf. Zorrero v. Unemployment Ins. Apps. Bd., 47 Cal.App.3d 434, 120 Cal.Rptr. 855, 858 (Ct.App.1975) (claimant's truck broke down, depriving him of private means of transportation and forcing him to take a two-hour bus trip; held, onerous trip not good cause to quit job); Copeland v. Oklahoma Employment Sec. Comm'n, 197 Okl. 429, 172 P.2d 420, 423 (1946) (where unemployed claimant is unable to provide any transportation, he is not available for work and thus is precluded from collecting benefits). But see Bateman v. Howard Johnson Co., 292 So.2d 228 (La.1974) (where transportation is unavailable, or available only at a prohibitive cost, employment may thereby be rendered unsuitable); Raytheon Co. v. Director of Div. of Employment Sec., 364 Mass. 593, 307 N.E.2d 330 (1974) (claimant who lost transportation left work for purely personal reasons; however, she did so involuntarily); Lyons v. Appeal Bd. of Mich. Employment Sec. Comm'n, 363 Mich. 201, 108 N.W.2d 849, 854-55 (Mich.1961) (where employee was laid off, then accepted employment 273 miles away, but was forced to quit after two and one-half weeks due to insurmountable transportation problems, termination was not voluntary). Thus, the Appellate Division holdings in White and Morgan are in harmony with the majority approach.

Our dissenting colleague not only disregards the prevailing interpretation of the...

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