LEO R. VOLZ, SR. VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 27, 2018
• Docket: A-5125-16T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5125-16T3

LEO R. VOLZ, SR.,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and AAH MANAGEMENT CO., INC.,

Respondents. ___________________________________

Argued July 17, 2018 – Decided July 27, 2018

Before Judges Ostrer and Vernoia.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 115,632.

Leo R. Volz, Sr., appellant, argued the cause pro se.

Jana R. DiCosmo, Deputy Attorney General, argued the cause for respondent Board of Review (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Jana R. DiCosmo, Deputy Attorney General, on the brief).

Michael A. Katz argued the cause for respondent AAH Management Co., Inc. (Paul & Katz, PC, attorneys; Michael A. Katz, of counsel and on the brief).

PER CURIAM

Leo Volz appeals from the Board of Review's order reversing

the decision of the Appeal Tribunal and finding that he left work

without good cause attributable to work. See N.J.S.A. 43:21-5(a).

We reverse.

For approximately three-and-a-half years, AAH Management,

Inc., employed Volz as a part-time administrative assistant at the

Barrington Mews apartment complex. His regular hours were 9:00

a.m. to 2:00 p.m., five days a week. He earned $11 an hour. In

September 2016, management informed Volz that his shift would end

at 1:00 p.m., and, consequently, his total weekly hours would be

cut from twenty-five to twenty. Around the same time, another

manager assumed roughly eighty percent of Volz's duties. After

working those reduced hours for about a month, Volz resigned. He

did so mainly because his hours, and his resulting income, were

reduced. Secondarily, he did so because his workload was reduced.

The Appeal Tribunal reversed the initial denial of Volz's

benefits, concluding that Volz's twenty-percent reduction in

income was substantial, and constituted good cause attributable

to the work for leaving. The Board reversed. Relying on Zielenski

v. Board of Review, 85 N.J. Super. 46, 52 (App. Div. 1964), the

2 A-5125-16T3 Board held that Volz, as a part-time employee, "had a reasonable

opportunity to pursue employment with more hours and better wages

when he was not working."

We deferentially review the Board's decision, but shall

reverse if it is arbitrary, capricious, or unreasonable, or lacks

the support of sufficient credible evidence. Brady v. Bd. of

Review, 152 N.J. 197, 210 (1997). We are not obliged to defer to

the agency's interpretation of our judicial precedent. Bowser v.

Bd. of Trs., Police & Firemen's Ret. Sys., ___ N.J. Super. ___,

___ (App. Div. 2018) (slip op. at 7).

The general principles governing the voluntary quit provision

are well settled. "Good cause" is cause "sufficient to justify

an employee's voluntarily leaving the ranks of the employed and

joining the ranks of the unemployed." Domenico v. Bd. of Review,

192 N.J. Super. 284, 287 (App. Div. 1983). A claimant is required

to do what is reasonable and necessary to stay employed. Brady,

152 N.J. at 214; see also Arden v. Bd. of Review, 231 N.J. 589,

602 (2018). The agency has identified good cause as a reason "so

compelling as to give the individual no choice but to leave the

employment." N.J.A.C. 12:17-9.1(b). The agency provides a non-

exclusive list of reasons that do not suffice; but reduction in

pay is not among them. N.J.A.C. 12:17-9.1(e).

3 A-5125-16T3 In Zielenski, the court held that a shipyard welder left work

voluntarily, without good cause attributable to the work. 85 N.J.

Super. at 52. The welder suffered a temporary layoff, and then

was called back to work intermittently. Id. at 51. The court

rejected as insufficient cause to quit "the unsteadiness of the

job and the fact that [the welder] was working, on an average,

only one or two days a week at a daily wage of $24.40." Id. at

52. The court held "this did not constitute good cause for giving

up this partial employment for none at all." Ibid.

However, the court in Johns-Manville Prods. Corp. v. Board

of Review, 122 N.J. Super. 366, 370 (App. Div. 1973), held that a

machinist had good cause to quit when his employer was going to

lay him off from a Class A machinist position, and shift him to a

less skilled position in the same plant. The change would have

reduced his wage rate from $4.27 to between $3.21 and $3.35 – a

cut of between twenty-two and twenty-five percent. Id. at 368.

The court affirmed the Board's decision, and endorsed the

principle that "a substantial reduction in wages constitutes good

cause for leaving work under N.J.S.A. 43:21-5(a)." Id. at 370.

The panel cited supporting authority from other jurisdictions.

Ibid. Notably, the Board rejected the employer's contention that

the claimant could have made up for the lowered pay rate by working

overtime. Id. at 369.

4 A-5125-16T3 We recognize the tension between Zielenski and Johns-

Manville. However, the Supreme Court in Brady adopted the general

principle expressed in Johns-Manville that a significant economic

loss may justify a voluntary quit. 152 N.J. at 220. After

reviewing the facts in Johns-Manville, and the cut in the

machinist's hourly rate, the Court stated, "The Board of Review

found that such a substantial reduction in the claimant's salary

constituted good cause to leave his work." Ibid. The Court then

cited with approval the holdings of other state courts that a

substantial reduction in wages affords good cause to quit. Ibid.

We are bound by this precedent. Applied to the facts before

us, we conclude the Board erred in reversing the Tribunal's

decision. Volz suffered a reduction in pay virtually identical

in percentage terms to that deemed sufficient in Johns-Manville

to justify a voluntary quit. Like the machinist who was offered

a position demanding lesser skills, Volz was confronted with a

reduction of his duties as well.

The Board apparently presumed, without any basis in the

record, that as a part-time worker, Volz could have looked for a

job during the time he did not work. However, Volz could have had

a second job, or other responsibilities, such as caring for a

spouse or other family member.

5 A-5125-16T3 In sum, consistent with Johns-Manville and Brady, we conclude

that Volz did not leave work voluntarily without good cause

attributable to the work. Given that conclusion, we need not

reach Volz's remaining points on appeal.

Reversed.

6 A-5125-16T3