Zielenski v. Board of Review, Division of Employment Sec., Dept. of Labor and Industry

• Citation: 203 A.2d 635,85 N.J.Super. 46
• Decision Date: 05 October 1964
• Docket Number: No. A--172,A--172
• Parties: Andrew J. ZIELENSKI, Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, State of New Jersey, Respondent.
• Court: New Jersey Superior Court – Appellate Division

Page 46

85 N.J.Super. 46

203 A.2d 635

Andrew J. ZIELENSKI, Appellant, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT

OF LABOR AND INDUSTRY, State of New Jersey, Respondent.

No. A--172.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 21, 1964.

Decided Oct. 5, 1964.

Andrew J. Zielenski, appellant, pro se.

Edward A. Kaplan, Jersey City, for respondent (Charles Quinn, Trenton, on the brief).

Before Judges CONFORD, KILKENNY and LEWIS.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Claimant, Andrew J. Zielenski, appeals from a final determination of the Board of Review, Division of Employment Security, affirming a decision of the Appeal Tribunal, holding claimant (1) disqualified for unemployment benefits as of May 30, 1963, under N.J.S.A. 43:21--5(a), upon its finding that he had left his work voluntarily 'without good cause attributable to such work,' and (2) ineligible for benefits from May 20, 1963 through May 25, 1963, because of his failure to report during that week at the designated time as required by Regulation 21.01.

So far as pertinent here, N.J.S.A. 43:21--5(a) provides:

'An individual shall be disqualified for benefits:

(a) 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 * * *.' (Italics ours)

Regulation 21.01 provides, in part:

'(b) In order to establish eligibility for benefits or for waiting week credit for any week of unemployment, the claimant shall report during such week on the day or days and at the time or times designated by a representative of the Division to the local employment service office at which he is registered for work.

(1) A claimant who has failed to report on his assigned reporting day shall be considered as having complied with this reporting requirement, provided he reports in person as soon as possible thereafter but not later than seven (7) days after his assigned reporting day, and provided, further, he shows good cause for having failed to report sooner.'

I.

We consider first the issue of disqualification under N.J.S.A. 43:21--5(a).

Claimant was employed by Todd Shipyards in Hoboken, New Jersey, as an electric welder at $3.05 per hour. He filed an initial claim for unemployment benefits on February 26, 1963, following a temporary layoff on February 22, 1963. On May 13, 1963 he reopened that claim by filing an additional claim for unemployment benefits, having been sent home from work on that date for lack of work. However, he worked at the shipyard on May 14, 15, 16 and 17. Therefore, for the week ending May 19, 1963 he had earned $97.60, a sum more than his weekly benefit rate of $50, and became ineligible for unemployment benefits during that week. N.J.S.A. 43:21--3(b)(2).

Claimant did not work during the week of May 20, 1963. However, he was declared ineligible for unemployment benefits during that week because he did not report to the local unemployment office on Tuesday, May 21, 1963, the date assigned to him for reporting, as required by Regulation 21.01. He gave as his reason for failing to report that he was looking for work. He did mail in form BC--260--D on May 24, 1963. Also, he did personally report at the local unemployment office on May 24, 1963. He testified that he had appeared at the local unemployment office on May 20, 1963, told a woman at the information desk there that he would be unable to report on the following day because he would be looking for work, and was given the above form to fill out and mail in within seven days, in lieu of personally reporting on his assigned date. This form is intended for the use of claimants who have returned to full-time work and cannot report in person on the reporting date. Whether these facts rendered him ineligible for unemployment benefits for the week of May 20, 1963 will be considered under II, Infra.

Claimant was recalled to work at the shipyard and worked there on May 28 and May 29, 1963. Even though there was work available to him on May 30, 1963, at double time because of the holiday, he refused to start work that day and went home because he did not like the job assigned to him. This assignment was to the so-called 'test gang.' In claimant's words: 'I told them that I didn't want that job, so I quit.' The employer had work for him on May 31, 1963, but he did not return to work after quitting on May 30, 1963. It is clear that claimant 'left work voluntarily.'

However, claimant argues that he did not do so 'without good cause attributable to such work.' At this point, it is well to note that the burden of proof is upon claimant to establish his right to unemployment compensation. DiMicele v. General Motors Corp., 51 N.J.Super. 167, 171, 143 A.2d 799 (App.Div.1958) , affirmed 29 N.J. 427, 149 A.2d 223 (1959). So, too, when an employee quits his job voluntarily, he has the burden of proving that he did so with good cause attributable to his work. Goebelbecker v. State, 53 N.J.Super. 53, 59, 146 A.2d 488, 491 (App.Div.1958). 'Good cause means cause sufficient to justify an employee's voluntarily leaving he ranks of the employed and joining the ranks of the unemployed.' Ibid. See, too, Morgan v. Board of Review, 77 N.J.Super. 209, 213, 185 A.2d 870 (App.Div.1962). 'In providing relief against the distress suffered by individuals from involuntary unemployment, the statute is designed to serve the general public interest and not alone the interest of the unemployed.' Campbell Soup Co. v. Div. of Employment Security, 13 N.J. 431, 436, 100 A.2d 287, 289 (1953).

Claimant's primary reason for voluntarily quitting his job at Todd Shipyards was the unsteadiness of the job and the fact that he was working, on an average, only one or two days a week at a daily wage of $24.40. But this did not constitute good cause for giving up this partial employment for no employment at all. An employee's reason for leaving his employment must meet the test of ordinary common sense and prudence. The Unemployment Compensation Law specifically provides for those who are only partially employed. N.J.S.A. 43:21--3(b)(2). According to the statutory formula, this partially employed claimant, with a weekly rate of $50, would have been entitled to receive as unemployment benefits $60 ($50 plus 20% Thereof) less his actual earnings. If he worked only one day in a week and received $24 therefor, the Division would have given him the differential of $36. If he earned $48 for two days, his unemployment check would have been $12. Thus, partial employment would have yielded him a gross of $60 weekly, whereas total unemployment in any week would have produced a maximum of $50 in unemployment benefits. And, whether working one or two days a week, he would have had adequate opportunity during the other days to seek another job providing more steady employment.

It is obvious from the foregoing that the individual's prudence and a decent regard for the public interest, by not unreasonably depleting the public fund, compel the conclusion that good cause does not ordinarily exist when a person gives up partial employment for none at all. The employee who works at an unsteady employment,...