Opinion
DOCKET NO. A-3969-12T1
08-01-2014
STEVEN BRAND, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and S&S CREDIT CO., INC., t/a STOP AND SHOP SUPER MARKETS, Respondents.
Brian J. DiStefano argued the cause for appellant (Law Office of Brian J. DiStefano, attorneys; Mr. DiStefano, on the brief). Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief). Respondent S&S Credit Company has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Leone. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 390,126. Brian J. DiStefano argued the cause for appellant (Law Office of Brian J. DiStefano, attorneys; Mr. DiStefano, on the brief). Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief). Respondent S&S Credit Company has not filed a brief. PER CURIAM
Claimant Steven Brand appeals from a final decision of the Board of Review, Department of Labor and Workforce Development, denying his claim for unemployment compensation benefits. We reverse and remand for reconsideration of Brand's claim.
Brand worked as a bakery clerk at a Stop & Shop Supermarket for almost fourteen years, from 1998 until he was terminated for being absent from work without excuse as of May 10, 2012. During his employment, he took time off from work on two or three occasions with his employer's knowledge for treatment of alcoholism. The employer warned him about his missing work but did not delay raises in the regular course of employment or otherwise sanction Brand because of his problems with alcohol abuse. Apparently, Brand's alcoholism did not affect his work performance except for periodic absenteeism or tardiness.
On May 11, 2012, Brand failed to come to work as scheduled and did not call in to report his absence. He missed work because he had relapsed and was again intoxicated. That evening he checked into a hospital, and the following day into a different hospital. From the second hospital, he was transferred to a rehabilitation facility. On each day that he was scheduled to work between May 12 and 19, either he or his sister called his employer to report that he was unable to come to work. On May 19, 2012, his supervisor told him he was terminated from his job as of May 10.
Brand applied for unemployment compensation benefits, and also unsuccessfully grieved the termination through his union. By notice mailed on June 7, 2012, a deputy director of the Division of Unemployment Insurance notified Brand that he was disqualified from benefits because he was a "no call/no show" from May 11 to May 19, 2012, and thus he was deemed to have left work voluntarily.
Brand sought administrative review of the denial. A telephone hearing before the Appeal Tribunal was conducted on November 8, 2012. The employer did not participate in the hearing and did not submit any documents or evidence to the Appeal Tribunal. Brand was the only witness. He testified forthrightly about his history of alcoholism, adding that his abuse of alcohol had never occurred while at work or directly interfered with his work duties. However, he admitted he had been warned by his employer about being late to work or missing days because of his alcohol abuse. He testified that one of his supervisors told him he had been permitted to attend rehabilitation twice but a third time would result in his termination.
Brand testified that he enrolled in alcoholism treatment and rehabilitation from May 19 to June 6, 2012, and since his discharge, had remained sober. He said he had applied for jobs in supermarkets and grocery stores, in keeping with his lifelong career, but had not found work.
After the conclusion of the telephone hearing, the Appeal Tribunal called Brand back and questioned him in detail about the nature and times of the warnings he had received from his employer. Brand did not have a clear recollection, and had not kept documentary evidence. He recalled having received one verbal warning between May 2011 and April 2012, when his employer told him not to be late again or else he would be terminated. He also admitted he had received one or more warnings in writing, although he was unclear about how many written warnings he had received for absenteeism.
The Appeal Tribunal issued its decision on November 9, 2012, modifying but affirming the decision of the deputy director to deny the claim. The Appeal Tribunal rejected the basis of the denial under N.J.S.A. 43:21-5(a) that Brand had left his employment voluntarily. Instead, it found that he was disqualified from benefits under N.J.S.A. 43:21-5(b) and N.J.A.C. 12:17-10.3 because he had been terminated for severe misconduct.
Brand's further administrative appeal was denied by the Board of Review on March 11, 2013, without additional fact findings. Brand filed a timely appeal before us.
Our standard of review is limited. Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985). We will reverse a decision of an administrative agency only if it is contrary to law or arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992); see also Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001) (scope of appellate review in appeal from denial of unemployment benefits).
N.J.S.A. 43:21-5(b) disqualifies a claimant from receiving unemployment benefits for eight weeks if he was discharged for misconduct. If he was discharged for severe misconduct, he is disqualified for benefits until he has worked again for at least four weeks and earned at least six times the amount of weekly benefits for which he may be eligible. Ibid.
Brand makes two arguments in this appeal: (1) that the Appeal Tribunal violated his due process rights because it did not comply with the procedural and evidential requirements of N.J.A.C. 1:12-14.2 and 1:12-15.1(b), and (2) that he was not guilty of severe misconduct because his alcoholism is a disease that he has been attempting to remedy.
We comment briefly about the first contention. Brand quotes a provision of N.J.A.C. 1:12-14.2(b) — "Where a party is not represented, the appellate body shall give every assistance that does not interfere with the impartial discharge of its official duties" — and he contends the regulation places a duty upon the Appeal Tribunal to advise him fully of his procedural rights before conducting a hearing. The Appeal Tribunal fulfilled any such responsibility by issuing a Notice of Telephone Hearing some two weeks before the date of the hearing that contained in clear, understandable writing the due process rights that Brand asserts. The Appeal Tribunal had no further duty to give him oral advice about the same rights.
We also reject Brand's claim that the Appeal Tribunal violated his procedural rights by calling him on the telephone a second time to resume the hearing and questioning him in detail about the nature of the warnings he had received. A hearing pertaining to unemployment benefits is not a criminal proceeding in which the claimant has a constitutional right to remain silent. Rather, he has an obligation to testify truthfully, as Brand surely did. In fact, his testimony demonstrated refreshing honesty with no intent to dissemble or to evade relevant information. His truthfulness should ultimately serve his purpose in reaching a just resolution of his claim.
With respect to N.J.A.C. 1:12-15.1(b), Brand contends the Appeal Tribunal relied on hearsay to conclude that he had received written warnings of his unexcused absenteeism before being terminated. However, Brand admitted he had received at least one such written warning, and a party's admission is not hearsay. In any event, hearsay is admissible in an administrative hearing such as this. Ibid.
Nevertheless, we agree with Brand that the absence of documentary evidence establishing the nature and contents of the warning he received may be relevant to final disposition of his appeal. Brand's admission was not sufficient by itself to prove that the employer warned that Brand would be terminated if he were hospitalized again for his alcohol abuse, as opposed to unexcused absenteeism generally.
Shortly after the Board of Review issued its decision in this case, we published our decision in Silver v. Board of Review, 430 N.J. Super. 44 (App. Div. 2013), in which we explained in detail our interpretation of what constitutes misconduct and severe misconduct. The law governing disqualification from unemployment compensation for misconduct, N.J.S.A. 43:21-5(b), was amended by the Legislature effective July 1, 2010. L. 2010, c. 37, §§ 2, 6. Before the amendment, the law provided disqualifications if the employee had engaged in work-connected "misconduct" or "gross misconduct," the latter being defined by statute as conduct that could be charged as a crime and completely disqualifying the claimant from unemployment benefits. N.J.S.A. 43:21-5(b); Silver, supra, 430 N.J. Super. at 48. In 2010, the Legislature added an intermediate level of misconduct — "severe misconduct" — with greater sanctions than those for "misconduct" and lesser sanctions than those for "gross misconduct." Silver, supra, 430 N.J. Super. at 49 n.4.
The statute does not define "misconduct." Over the years, courts have given content to the term, and, in 2003, the Department of Labor promulgated a regulation largely reflecting the judicial interpretations. The regulation states:
For an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee.
[N.J.S.A. 12;17-10.2(a).]
In Silver, we explained that the regulation provides a two-part test for misconduct. "First, the conduct must be improper, intentional, connected with the work, malicious, and within the employee's control. Second, the conduct must also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer has the right to expect." 430 N.J. Super. at 53.
In adding "severe misconduct" to the statute in 2010, the Legislature did not define that phrase, but it provided some examples:
repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats that do not constitute gross misconduct as defined in this section, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.
[N.J.S.A. 43:21-5(b) (emphasis added).]
In Silver, supra, 430 N.J. Super. at 55-56, we concluded that the term "misconduct" has the meaning assigned in N.J.A.C. 12:17-10.2(a), even when modified by "severe." Two of the examples of "severe misconduct" listed in the statute could apply to conduct that need not "be deliberate, intentional, or malicious" — repeated violations of an employer's rule or policy and repeated instances of lateness or absence. Silver, supra, 430 N.J. Super. at 55. But we concluded that the examples of "severe misconduct" apply only if the employee acted with the culpability required to establish "misconduct," that is, only if the "acts [are] done intentionally, deliberately, and with malice." Id. at 55-56.
Because neither the Appeal Tribunal nor the Board of Review made any finding in this case that Brand acted intentionally, deliberately, and with malice in becoming intoxicated and failing to attend at his job from May 11 until his termination on May 19, 2012, the Board's decision does not comply with the holding of Silver in concluding that Brand was discharged for severe misconduct. Consequently, Brand is entitled to a new hearing at which the issue of his intent may be explored under the standard established in Silver and with any additional relevant evidence.
We remand for reconsideration of Brand's claim for benefits in accordance with the interpretation of misconduct and severe misconduct in Silver. The Board of Review may reopen the hearing, and shall reopen the hearing if requested by Brand, for the presentation of additional evidence pertinent to the issue of misconduct. If the Board of Review reopens the hearing, the Appeal Tribunal shall conduct the hearing within sixty days of the date of this decision. We direct the Board of Review to issue a final decision within 120 days of the date of this decision.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION