Opinion
DOCKET NO. A-3086-11T4
01-09-2014
TRACY P. BRADBERRY, Appellant, v. BOARD OF REVIEW and BEST PROVISION CO., INC., Respondents.
Tracy P. Bradberry, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lisa A. Puglisi, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from the Board of Review, Department of Labor, Docket No. 324,250.
Tracy P. Bradberry, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lisa A. Puglisi, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief). PER CURIAM
Tracy P. Bradberry, a claimant for unemployment benefits, appeals from a final decision of the Board of Review (Board), affirming the determination of an Appeal Tribunal, finding him disqualified for unemployment benefits. Bradberry claims there was insufficient evidence to support the determination that he was discharged from his employment at Best Provision Company, Inc. (Best) for severe misconduct. We disagree with his contention and affirm.
The record reveals that Bradberry was hired by Best in July 2002 as a cleaner in the sanitation department. When his employment was terminated in 2011, he was described by Best vice president, Richard Dolinko, as the "lead man" in the sanitation department, earning approximately $45,000 per year.
Beginning in January 2008, Bradberry began to receive warnings for tardiness and failure to complete assigned tasks. Bradberry was warned in writing by Best management with copies sent to Bradberry's union, the United Food and Commercial Workers Union (Union). In 2008, warning letters were sent in January, March, July, and October. The October letter indicated that disciplinary action might be taken if Bradberry "did not perform his assigned job tasks as trained."
A January 13, 2009 warning letter indicated Bradberry failed to perform his assigned job tasks and left the premises prior to their completion. On January 26, 2009, Bradberry was given written notice of his termination for "time theft." After the Union interceded, Bradberry was conditionally reinstated with the caveat that any further infraction of company policy would result in his immediate termination.
On June 5, 2009, Bradberry was suspended for three days for failing to complete an assigned task. He then received written warnings for excessive tardiness on December 23, 2009, and again on January 5, 2010. The January 5, 2010 letter indicated that it would be Bradberry's "FINAL warning letter."
On February 24, 2010, Bradberry received another three-day suspension for "excessive absenteeism and tardiness, not performing his assigned job task . . . and not reporting to work per a pre-arranged agreement with Management." Bradberry was warned that "[a]ny further infraction will result in Management reserving the right to take severe disciplinary action (termination)." Bradberry and the Union were provided with reports detailing his absenteeism and tardiness.
On April 20, 2010, Bradberry received his second notice of termination for excessive absenteeism and tardiness. On May 3, 2010, Bradberry was again reinstated.
On January 24, 2011, Bradberry received his third and final notice of termination. Dolinko informed the Union that Bradberry's excessive tardiness and the progressive discipline already employed would preclude his reinstatement.
Bradberry filed a claim for unemployment benefits and a deputy director of the Division of Unemployment Insurance (DUI) initially determined he was eligible for benefits. The deputy also held that Best would be charged for any unemployment benefits paid to Bradberry on the ground that he had not been disqualified for benefits as a result of his separation from Best.
Best appealed, and a hearing was held before an Appeal Tribunal. Dolinko testified and reviewed Bradberry's employment history with Best. He described the numerous warnings and suspensions and documented each with letters sent to Bradberry and the Union. He explained how Bradberry's tardiness affected the functioning of the sanitation department and resulted in unnecessary overtime costs to Best.
Bradberry testified, and contested some of the tardiness allegations. When the appeals examiner confronted him with the employer's detailed documentation, he conceded that he was late "a few times." He also admitted he was aware of the company policy about arriving to work on time.
The appeals examiner reversed the decision of the deputy, and determined that Bradberry was disqualified for benefits pursuant to N.J.S.A. 43:21-5(b), as his discharge was for severe misconduct connected with work. The examiner found:
The claimant's continued tardiness, after numerous warnings and prior discharges, demonstrated an intentional disregard of the employer's interests, a deliberate violation of the employer's rules and a disregard of standards of behavior expected of an
employee. The claimant's attempts to suggest otherwise is misleading and a prevarication of the facts shown. One is obligated to report in a timely manner and when the claimant continued to fail to do so, after being warned repeatedly, and being subject to earlier terminations, his actions rose to the level of misconduct connected with the work.
In determining whether the claimant's actions should also be considered as rising to the level of severe misconduct as defined in the statute, we consider whether that misconduct was of malicious intent a standard above that intent to cause harm. To be seen as malicious there must be a demonstration that the intent also caused extensive harm to the function of the employer's business so as to cause pecuniary harm or other "injury" to the employment relationship.
Because of the extensive disregard, over a period of time and following numerous warnings and other actions by the employer, it is concluded that the claimant did act in malicious disregard of the employer's interests so as to manifest severe misconduct connected with the work. Accordingly, the claimant is disqualified for benefits under N.J.S.A. 43:21-5(b), as of 1/23/2011 as the discharge was for severe misconduct connected with the work.
Bradberry appealed and on January 18, 2012, the Board affirmed the decision of the Appeal Tribunal.
In Bradberry's pro se appeal, he does not provide point headings as required by Rule 2:6-2. From his brief, we infer that he is challenging his disqualification "because [his] former employer did not submit any evidence or testimony to prove that [he] engaged in any misconduct." We disagree and affirm.
New Jersey's Unemployment Compensation Law (the Act), "is social legislation that provides financial assistance to eligible workers suffering the distress and dislocation caused by unemployment." Utley v. Bd. of Review, 194 N.J. 534, 543 (2008). The purpose of the Act "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own . . . ." Ibid.
The Act provides that an individual is disqualified for benefits if the employee is discharged for "misconduct," and "gross misconduct" connected with the work. N.J.S.A. 43:21-5(b). "Severe misconduct," which was added to the statute by the Legislature in 2010, requires a "greater culpability than simple misconduct, but less than gross misconduct[.]" Silver v. Bd. of Review, 430 N.J. Super. 44, 48-49 (App. Div. 2013).
The Act provides no definition of severe misconduct but gives examples including, "repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer . . . ." N.J.S.A. 43:21-5(b).
On appeal, Bradberry does not appear to contest Best's proof of his absences and tardiness up until his second termination in April 2010. Rather, he claims that Best has failed to prove any misconduct after his second reinstatement on May 3, 2010. In essence, Bradberry argues that his conditional reinstatement wiped the slate clean of his prior infractions, and he must be judged solely on his conduct after his second reinstatement.
Bradberry provides no authority for his position, which conflicts with the basic principle of progressive discipline. See Town of W. New York v. Bock, 38 N.J. 500, 523 (1962) ("an employee's 'past record' in a disciplinary proceeding. . . . may be resorted to for guidance in determining the appropriate penalty for the current specific offense.") Moreover, Bradberry ignores the proof submitted by Best, that since his second reinstatement on May 3, 2010, he was tardy on twenty-two occasions.
The standard of review we employ in appeals from administrative agency decisions, including those of the Board of Review, is limited. Messick v. Bd. of Review, 420 N.J. Super. 321, 324 (App. Div. 2011). We focus on whether the Board's determination was arbitrary, unreasonable, or capricious, or unsupported by the record. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). "[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its 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)). We are required to defer to an agency's technical expertise, its superior knowledge of its subject matter area, and its factfinding role. See Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Doerinq v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). If we determine that the factual findings are supported by sufficient credible evidence, we are obliged to accept them. Self v. Bd. of Review, 91 N.J. 453, 459 (1982).
Applying these principles, we are satisfied that the Board's finding of severe misconduct finds adequate support in the record and we discern nothing material in the Board's decision that satisfies the "arbitrary, capricious or unreasonable" test.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION