Opinion
DOCKET NO. A-0480-12T2
07-28-2014
HENRY J. KOCH, Appellant, v. BOARD OF REVIEW, THE NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and ENTEL SYSTEMS, INC., Respondents.
Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Arykah A. Trabosh, on the briefs). Alan C. Stephens, 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; Mr. Stephens, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Nugent. On appeal from the Board of Review, New Jersey Department of Labor and Workforce Development, Docket No. 336,396. Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Arykah A. Trabosh, on the briefs). Alan C. Stephens, 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; Mr. Stephens, on the brief). PER CURIAM
Appellant Henry J. Koch appeals the final agency decision of the Board of Review (Board) in the Division of Unemployment Insurance (Division), New Jersey Department of Labor and Workforce Development, denying his application for unemployment benefits. We affirm in part and remand in part.
I.
We discern the following facts and procedural history from the record on appeal.
Koch was employed as a communications technician by Entel Systems, Inc., from February 7, 2004 through March 11, 2010. On March 11, 2010, Koch was dispatched to a customer's facility to perform work on the second floor. At that time, he observed that the only access to the second floor was "a 12 foot extension ladder leaning against the wall." The ladder led to a "hole in the ceiling" through which Koch could gain entry to the second floor. The customer's facility was under construction and there "was no staircase going to the second floor."
Based upon his observations, Koch completed a work order stating he was unable to complete the assignment due to an unsafe working condition. Before leaving the premises, Koch testified that he stated to the customer that "when the staircase is built[,] give us a call and we'll come back and finish the job."
Once he got outside, Koch called Philip Penzo, his supervisor, and characterized the job site as "an unsafe working condition." According to Koch, Penzo stated that other technicians had performed work by accessing the second floor using the ladder, and that if Koch was unwilling to do so, Penzo "had no other work for [him] that day and that [he] should go home." Koch conceded that Penzo never told him that he was terminated.
According to Koch, at the end of their daily assignment, he and the other Entel technicians "would go home with [their Entel] vehicles and all the equipment." They would receive an email from Entel "at the end of the day" notifying them of their assignment for the following day. Koch did not receive such an email from Entel on March 11. However, earlier that afternoon, Koch had sent an email to Entel with the subject line "No Work." It stated: "Today 3/11/10 Philip Penzo Told Me That there is No Work For Me Today And I Should Go Home. I will be fil[]ing Unemployment Insurance[.] It was nice Working with Entel."
Jim Black, Entel's marketing manager, responded to Koch's email on March 12, in the late morning, with the subject line "Resignation Issues." The email stated:
You were suspended on Thursday, March 11, 2010, not terminated, for walking off the job without discussion and/or approval from Entel management; making a negativeKoch responded later that afternoon, as follows:
comment to the customer upon your exit; and causing a customer complaint. You were advised there was no further work for you that day when you were sent home.
We accept your e-mail as your notice of resignation.
A check for all company monies due [to] you will be available at Entel Systems on Wednesday, March 17, 2010. When you come to the office to pick up this check, we expect return of our company vehicle; company laptop; company EZ Pass; all outstanding work orders; and all company tools.
We thank you for your service to Entel Systems. Please contact me should you have any questions regarding this matter.
The letter was not one of resignation. It was a courtesy to inform you that I was applying for unemployment insurance since there was no work. The facts of the situation were the job site had an unsafe working condition. There was a 12 ft. ladder leaning against the wall. This was the temporary means to get to the 2nd floor, thru a hole in the ceiling. The customer told me they were waiting for a staircase to be built. I told the customer to give us a call when the staircase was finished. I called the office and informed them of the unsafe condition from the job site. Phil Penzo got on the phone and said "Other technicians have done work there previously and if I was not going to do the work, there is no more work for me and I should go home." I did not leave the job site until Phil Penzo told me to go home.
Please put [m]y pay check in direct deposit as usual.
Having received no response, Koch sent another email early on March 13, explaining his understanding regarding the events on March 11 and "to set the record straight." Doug Paget, Entel's service manager, responded to Koch's email on the afternoon of March 16, reiterating Entel's expectation that Koch would return all company-issued equipment and materials when he picked up his paycheck on March 17.
Koch filed a claim for unemployment benefits and received a total of $31,200 for weeks ending on March 20, 2010 through March 12, 2011. In March 2011, the Division notified him that there would be a telephone fact-finding interview on April 4 to determine whether he quit his job "without good cause attributable to the work." Based upon that interview, the deputy director issued a decision on May 18, determining that Koch was disqualified for benefits from March 7, 2010, for voluntarily leaving work without explanation, discussion, or approval from his employer. The deputy director found that Koch was told there was no work for him that day and that Koch then filed an unemployment benefits claim without exhausting opportunities to remain employed. The decision also required the return of the benefits already received.
On May 21, Koch appealed the deputy director's decision. The Appeal Tribunal conducted a telephonic hearing on July 21. Koch, Black, and Penzo testified at the hearing to the basic facts described above. In addition, Koch testified that he made a complaint regarding the unsafe working condition to the Occupational Safety and Health Administration (OSHA) on March 11. According to Black, "there were no fines, there were no problems, and that case was closed out [by OSHA]."
According to Black, Entel first learned that Koch was not completing the job from the customer's complaint. It was his belief, based on Koch's email, that Koch resigned. As a result, Entel did not offer Koch any further jobs. Black added that Entel "didn't offer him a . . . job back because he was a marginal employee."
Penzo testified that he told Koch he was "suspended for the day" and there was no further work for him that day. He did not assign Koch a job for the next day as he had received an email from Koch that Entel understood to be a resignation.
The Appeal Tribunal issued a decision on July 27, reversing the deputy director's decision and finding that "[t]here was no evidence that the claimant intended to leave his job, and . . . the claimant is not considered to have voluntarily left his job." As a result, the Tribunal found that Koch was not disqualified. It noted that Entel "provided no evidence during the hearing to support" the contention that Koch "was ever suspended for any reason."
Entel appealed the Tribunal's decision to the Board on August 16. In February 2012, the Board remanded the matter to the Appeal Tribunal for a further hearing, finding "there is need for additional testimony from the claimant and the employer regarding the unsafe working conditions that caused the claimant's separation from work."
Black, on behalf of Entel, made an unsuccessful effort to disqualify the examiner who conducted the initial hearing for the Appeal Tribunal from conducting the remand hearing. The examiner reviewed the information from the original hearing and invited the parties to supplement the record with any additional testimony during the remand hearing.
Koch added that OSHA did not issue the customer a citation because "the ceiling was closed and the 12 foot ladder was not there" upon its inspection. Koch asserted that his concerns regarding the confined space on the second floor of the customer's site included the inability to test the air conditions and that there needed to be two technicians present to complete the work safely according to OSHA standards. Koch further testified that, when he called Penzo to report the unsafe working condition, he did so after he had left the "customer's store front[, but was] standing in the lobby of the building."
Black provided additional testimony on behalf of Entel. He characterized Koch as "an insubordinate employee who was in progressive discipline for his actions on the job." Black summarized the two earlier incidents that formed the basis for Koch's discipline. Koch disputed these assertions when asked whether he objected to Black's introduction of documents regarding prior discipline.
When the hearing resumed, Black read into the record from Entel's report of the customer complaint resulting from the March 11, 2010 incident. He testified that Koch "walked off the job without management approval, . . . made a sarcastic comment to our customer, [and] caus[ed] a customer complaint." Black reiterated that Entel did not terminate Koch, and instead, accepted his email as a resignation.
The hearing concluded on March 28, 2012, and the Tribunal mailed the remand decision the next day. The Tribunal found that there was no disqualification because "the claimant did not leave the job voluntarily without good cause attributable to such work," based on the finding that there "was no evidence that the claimant intended to leave his job." The Tribunal "found the claimant's reason for failure to climb a 12 foot ladder to be reasonable and compelling." The Tribunal also stressed that past misconduct does not make a claimant disqualified from subsequent benefits because "the misconduct in question [must have been] the immediate cause of the discharge."
Entel again appealed to the Board. In its August 29 decision, the Board substantially accepted the facts from the tribunal, but added that Koch did not prove an unsafe condition, and rejected the result reached by the Tribunal. The Board found "that the claimant initiated the separation from work when he refused to perform the work assigned claiming unsafe working conditions without fully discussing the issue with his employer, and subsequently by filing a claim for unemployment benefits." The Board was "not persuaded that the conditions of employment were [so] unsafe as to give the claimant good cause for leaving work."
As a result, the Board found Koch disqualified for benefits due to leaving work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a), and found Koch liable to repay the benefits received, N.J.S.A. 43:21-16(d). This appeal followed.
II.
Koch raises three issues on appeal. First, he argues that Entel's appeal of the initial March 2010 decision awarding him unemployment benefits was untimely and should not have been considered. Second, he argues that, because he was twice found to be entitled to benefits, the Board's decision that he refund all of the payments received violated N.J.S.A. 43:21-6(b)(1). Third, he contends that the Board incorrectly determined that the working conditions at the customer's premises in March 2010 were not dangerous.
Our scope of review of an administrative agency's action is limited and highly deferential. Russo v. Bd. of Trs., 206 N.J. 14, 27 (2011). It is restricted to the following inquiries:
(1) whether the agency's decision offends the State or Federal Constitution;So long as the Board's decision is supported by sufficient credible evidence in the record and was neither "arbitrary, capricious, [nor] unreasonable," it will be affirmed. Id. at 210 (citing In re Warren, 117 N.J. 295, 296 (1989)).
(2) whether the agency's action violates express or implied legislative policies;
(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and
(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Brady v. Bd. of Review, 152 N.J. 197, 211 (1997) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]
We also review factual findings made by an administrative agency deferentially. On appeal, "the 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." Ibid. (emphasis added) (quoting Charatan v. Bd. of Review, 2 00 N.J. Super. 74, 79 (App. Div. 1985)) (internal quotation marks omitted). So long as the "factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
While the Board certainly has a duty to protect the integrity of the unemployment compensation fund from the payment of ineligible claims, Heulitt v. Bd. of Review, 300 N.J. Super. 407, 412 (App. Div. 1997), the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, is nevertheless remedial legislation entitled to a liberal construction, Carpet Remnant Warehouse , Inc . v . N . J . Dep ' t of Labor, 125 N . J . 567, 581 (1991). Applicants such as Koch, who also contribute to the fund, are entitled to be treated fairly by the Board.
N.J.S.A. 43:21-6(b)(1) provides, in pertinent part, that,
[u]nless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification was mailed to his or her last-known address . . . , files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith, except for such determinations as may be altered in benefit amounts or duration as provided in this paragraph.Koch contends that Entel did not comply with the ten-day time limit, pointing to the fact that the deputy director's notice scheduling the telephone hearing to determine whether he was disqualified because he left employment for reasons unrelated to the work was not sent out for a year after he began receiving benefits.
There is no document appealing the March 2010 decision in the record, nor is there any explanation as to why a timely appeal would have taken so long to schedule or any other basis for the deputy director's notice. We do not find the State's suggestion that Koch had the duty to produce the appeal document to be at all persuasive. He was not the party who filed it, and it is not listed in the agency's list of documents comprising the record. Also, it was not provided by the State in an appendix. Consequently, we remand to the Division for determination of whether there was a timely appeal. If there was not, absent some reason for the one-year delay in the scheduling of the deputy director's hearing not articulated in the Division's brief, we see no reason why Entel's appeal should not have been dismissed as untimely and Koch's benefits reinstated.
We agree with the State that Entel's failure to respond to the notice for financial information does not bar it from appealing with respect to the issue of disqualification.
Despite the remand, we reach the remaining issues raised on appeal. The State is correct that the two-determination rule found in N.J.S.A. 43:21-6(b)(1) requires separate findings of eligibility and nondisqualification. Bocchino v. Bd. of Review, 202 N.J. Super. 469, 472-73 (App. Div. 1985). In Bocchino, we held that the purpose of the rule "seems to be to relieve a claimant who, in good faith, accepts and spends benefits sanctioned by two different administrative tribunals and who should, therefore, not have repayment added to the already heavy burden of unemployment." Id . at 472. The funds at issue here were paid out on the basis of the initial determination of eligibility in 2010. There was no finding of nondisqualification by the Appeal Tribunal until after the deputy director ordered reimbursement in May 2011. Consequently, the two-determination rule is not applicable in this case.
With respect to the Board's determination that Koch was disqualified pursuant to N . J . S . A . 43:21-5(a) because he left employment without good cause attributable to the work, our standard of review requires us to defer to the determination made by the Board, which is not arbitrary or capricious, and does find ample support in the record. Brady, supra, 152 N.J. at 210-11. Koch's initial email to Entel can easily be interpreted as a resignation. In addition, he left his work assignment without consulting with his supervisors or exploring ways to make the work environment safer. The Board's determination that Koch failed to demonstrate an unsafe workplace is supported in the record.
In summary, we affirm in part and remand in part. On the remand, the Board must determine whether Entel's appeal of the initial eligibility decision was timely and, if it was not, whether Entel's appeal should have been dismissed and Koch's benefits reinstated. If there was a basis for a sua sponte review by the deputy director, it has not been articulated in the Division's brief. If the appeal was timely, the Division must consider whether there are equitable reasons for waiving some or all of Koch's obligation to repay the benefits based on the delay between the initial eligibility decision and the subsequent finding of disqualification. See N.J.A.C. 12:17-14.2(a)(3). We do not retain jurisdiction.
Affirmed in part, remanded in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION