JOSEPH E. WAGNER, SR. VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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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