Opinion
DOCKET NO. A-6374-11T3
10-07-2014
ANDRES L. GARCIA, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and A-SELF STORAGE OF HALEDON, LLC, Respondents.
Howard J. Gregory argued the cause for appellant (Northeast New Jersey Legal Services Corp., attorneys; Mr. Gregory, on the brief). Arupa Barua, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Barua, on the brief). Respondent A-Self Storage of Haledon, LLC, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 305,825. Howard J. Gregory argued the cause for appellant (Northeast New Jersey Legal Services Corp., attorneys; Mr. Gregory, on the brief). Arupa Barua, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Barua, on the brief). Respondent A-Self Storage of Haledon, LLC, has not filed a brief. PER CURIAM
Claimant Andres L. Garcia appeals the Board of Review's determination that he was discharged from his employment as a result of "severe misconduct" within the meaning of N.J.S.A. 43:21-5(b), and thereby must refund unemployment benefits that he improperly received. We affirm.
This matter was the subject of two successive hearings before the Appeal Tribunal. In the initial hearing, the hearing examiner reversed a finding by the claims deputy denying claimant benefits, based upon the examiner's conclusion that claimant had not been aware that his behavior was in violation of his employer's policies. The employer then sought to present additional testimony, and a second hearing before a different hearing examiner was conducted. That second examiner, after considering the testimony of claimant and the employer's representative Nancy Geiser, reached the opposite conclusion, determining that claimant had indeed engaged in severe misconduct. The Board of Review affirmed that determination, and this appeal ensued.
Geiser had not testified at the initial hearing.
The pertinent background shows that claimant worked for a storage company until his discharge in September 2010. He was accused by his employer of two separate forms of allegedly severe misconduct. First, he waived late fees for his own personal storage account on four or five occasions over a seven-month period, totaling $144.49 in waived fees. Claimant contended that he was told by an employee of a sister company that employees do not have to pay such late fees. Based on that alleged advice, claimant did not charge himself for those fees, indicating on the account entries that he was an employee. However, the employer's representative at the second hearing testified that she had specifically addressed this subject with claimant in July or August 2010, and claimant nevertheless waived his fees again on September 3, 2010.
The second alleged instance of severe misconduct occurred several days before claimant was fired when his supervisor observed him at work making a personal cell phone call. The supervisor told him that the call should have been made on his own personal time. This caused claimant to become angry, precipitating a verbal altercation with the supervisor. At the second hearing before the Appeal Tribunal, the employer's representative stated that claimant had been "written up" previously for insubordination. She also contended that he was specifically told in the past to adhere to the company's policies on personal cellphone use at work, although those prior instances were not substantiated by the employer with written documentation.
Having considered the amplified testimony of both sides, the second hearing examiner concluded that claimant had engaged in severe misconduct within the meaning of N.J.S.A. 43:21-5(b), both with respect to claimant waiving his personal late fees and with respect to his verbal altercation with his supervisor. The Board of Review adopted that decision, finding that claimant had been "given a full and impartial hearing and a complete opportunity to offer any and all evidence[.]"
On appeal, claimant argues that the evidence does not support a finding that he engaged in severe misconduct, and that the Board of Review's decision is not entitled to deference because the second hearing examiner allegedly misapplied the respective concepts of severe misconduct and simple misconduct.
The applicable law is undisputed. Following a conditional veto by Governor Christie, the Legislature amended the unemployment statutes in 2010 to add a third intermediate category for benefit disqualification classified as "severe misconduct." See L. 2010, c. 37, § 2 (now codified at N.J.S.A. 43:21-5(b)). Prior to that time, the statute only included the categories of ordinary "misconduct" and "gross misconduct." See generally Silver v. Bd. of Review, 430 N.J. Super. 44 (App. Div. 2013) (tracing the evolution of the statute). The amended statute does not provide a comprehensive definition of severe misconduct, and the agency has yet to adopt regulations defining that term. However, the statute does provide certain examples of what comprises severe misconduct, including "theft of company property." N.J.S.A. 43:21-5(b); see also Silver, supra, 430 N.J. Super. at 53-55 (noting the enforceability of these illustrative examples).
We held in Silver that severe misconduct requires, at a minimum, proof of the same state of mind on the part of the claimant needed to show simple misconduct. Silver, supra, 430 N.J. Super. at 55-56. Specifically, it must be shown, first, that the claimant's actions that resulted in his discharge were "improper, intentional, connected with the work, malicious, and within the employee's control." Id. at 53 (emphasis omitted); see also N.J.A.C. 12:17-10.2 (defining misconduct). 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." Silver, supra, 430 N.J. Super. at 53; see also N.J.A.C. 12:17-10.2.
The Board of Review and the second hearing examiner properly applied these concepts, at least with respect to claimant's conduct in waiving his own late fees. In the second hearing examiner's findings of fact, the examiner specifically found that claimant had been warned about waiving the late fees "approximately six (6) weeks prior to his separation." This finding signifies that the examiner did not find credible or persuasive claimant's assertion that he had been authorized to waive the late fees because of his alleged discussion about the topic with an employee of a sister company. In any event, even if that other employee had indeed told claimant that the fees could be waived, it would not countermand the warning that his own supervisor Geiser issued to him in July or August of 2010. Although the amount of money accumulated in waived late fees is not enormous, the amounts do represent his employer's property, being revenue that the employer was entitled to receive.
We owe deference to the second hearing examiner's findings of fact and credibility assessments. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 ( 1982 )); see also Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981).
In addition, we owe deference to the Board of Review's expertise in unemployment cases and its repeated construction and application of the standards of Title 43. See, e.g., Brady, supra, 152 N.J. at 210; Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). Unless the Board of Review's action "was arbitrary, capricious, or unreasonable, [its] ruling should not be disturbed." Brady, supra, 152 N.J. at 210.
Applying these standards of review, the Board of Review's decision must be sustained, as there is ample evidence in the record to support the finding of severe misconduct with respect to claimant's waiver of the late fees on his own storage account after being told by a supervisor that such waivers were not allowed. The situation is distinguishable from Silver, supra, 430 N.J. Super. at 57, in which the claimant schoolteacher's failure to collect all of the pens supplied to her students (as required by her employer) was neither intentional or deliberate, nor within her realistic control.
In light of this conclusion, we need not reach the question of whether claimant's alleged insubordination after the cell phone incident was sufficiently proven and amounted to severe misconduct. The wrongful waiver of late fees suffices to establish a violation of the statute.
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We reject claimant's argument that the agency was bound to accept the contrary findings in his favor initially reached by the first hearing examiner. The agency acted well within its discretion to proceed with a second hearing, at which additional testimony was adduced. See, e.g., In re Kallen, 92 N.J. 14, 30-31 (1983) (noting an administrative agency's authority to reopen hearings to accommodate further proofs).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION