Opinion
DOCKET NO. A-0149-13T4
01-20-2017
LAWRENCE G. ROMAN, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and CREATIVE PRINT GROUP, Respondents.
Thiel Law Firm, LLC, attorneys for appellant (Damen J. Thiel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Respondent Creative Print Group has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Reisner and Sumners. On appeal from the Board of Review, Department of Labor, Docket No. 352,519. Thiel Law Firm, LLC, attorneys for appellant (Damen J. Thiel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Respondent Creative Print Group has not filed a brief. PER CURIAM
In this unemployment benefits dispute, we do not detail the painstaking procedural history. Suffice it to say, there have been four hearings before the Appeal Tribunal, all but one the result of remands by the Board of Review. After claimant Lawrence G. Roman was initially awarded full benefits by the Deputy Director and the initial Appeal Tribunal hearing, all subsequent decisions were unfavorable to him. And in the second Appeal Tribunal hearing, Roman did not receive notice of the hearing.
On July 23, 2013, the Board affirmed the Appeal Tribunal's June 10, 2013 decision that Roman was disqualified from receiving benefits for eight weeks, pursuant to N.J.S.A. 43:21-5(b), due to simple misconduct. Roman appealed, and on March 25, 2015, we granted the Board's request for a remand to enable the Board to reconsider Roman's claim in light of our decision in Silver v. Board of Review, 430 N.J. Super. 44 (App. Div. 2013). We retained jurisdiction.
Remand was for sixty days, or until May 25, 2015.
In its May 14, 2015 remand decision the Board reaffirmed the Appeal Tribunal's June 10, 2013 decision. For the reasons that follow, we affirm.
The Board's decision mistakenly refers to that decision as being on June 10, 2015.
The record reveals that Roman began his employment with Creative Print Group (CPG), a provider of print and web services, on April 4, 2010. After being hired to work in sales, Roman subsequently became a production manager. However, when CPG lost a major client, he was re-assigned back to sales effective early July 2011, changing his compensation from salary to commission-based.
On July 14, 2011, Roman had a closed door meeting with CPG owner Howard Friedman to discuss Roman's compensation. The meeting concluded without resolution due to a heated argument. According to Friedman, Roman cursed and threatened to fight him, which caused Friedman to call police and terminate Roman. Conversely, Roman asserted that Friedman displayed combative behavior at the start of their meeting. Roman claimed that he was fired for requesting additional compensation from his prior work as a production manager. Roman maintained that after being fired, he called Friedman a "M.F." and told him to "[g]et out of [his] way," because Freidman was at the office doorway blocking him from leaving. Roman contended that he then went home and called the police.
Following our remand, the Board affirmed the Appeal Tribunal's decision that Roman was terminated for simple misconduct connected with the work and disqualified him from benefits for eight weeks. The Board found that during the meeting with Friedman, Roman "became combative and used expletives towards employer. In response to [Roman's] reaction, [Friedman] asked him to leave company premises." Citing Silver, the Board determined that "[b]y becoming belligerent and combative to a point where [Roman] was asked to leave before fully discussing the matter of his pay, [Roman] acted in a manner that demonstrates intent and deliberateness in his actions."
Before us, Roman contends that the Board misapplied the law, that he was denied due process because he was not given notice to participate in a re-hearing, and that the Board's decision was arbitrary and capricious. We disagree.
Following the Board's remand decision, Roman submitted a supplemental brief reiterating the arguments he made in his initial appeal brief.
Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996) (citing Merin v. Maglaki, 126 N.J. 430, 434-37 (1992)). Further, "[w]e are obliged to defer to the Board when its factual findings are based on 'sufficient credible evidence' in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (quoting Brady v. Board of Review, 152 197, 210 (1997); Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence, or inconsistent with the enabling statute or legislative policy. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001).
In this case, the Board had to consider whether Roman's conduct constituted misconduct which results in an eight-week disqualification from unemployment benefits. N.J.S.A. 43:21-5(b). "[M]isconduct must be 'more than simply inadequate job performance that provides good cause for discharge.'" Silver, supra, 430 N.J. Super. at 52 (quoting Parks v. Bd. of Review, 405 N.J. Super. 252, 254 (App. Div. 2009)). In Silver, we set forth a "two-prong standard" to establish misconduct, as follows: "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." Id. at 53.
Given our standard of review, we discern no reason to interfere with the Board's decision. We defer to the Board's finding that Freidman's testimony concerning the meeting was more credible than Roman's testimony. Thus, we are satisfied with the Board's application of Silver, finding that Roman's cursing and threats towards Freidman were intentional, and constituted misconduct resulting in an eight-week disqualification from receiving benefits.
We note that effective May 18, 2015, four days following the Board's remand decision, the Department of Labor and Workforce Development's new rule provided definitions for simple misconduct and severe misconduct to address the Silver analysis. N.J.A.C. 12:17-2.1.
In addition, we reject Roman's contention that there were due process violations because he was not given notice to participate in an Appeal Tribunal hearing. Due process requires that a claimant seeking unemployment benefits "must be given a real chance to present his or her side of the case before a government decision becomes final." Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992). Here, there is no indication that the final agency decision was based upon the hearing in which Roman not given notice. After the hearings in which Roman was not noticed, Roman testified in the subsequent hearings that were held. Indeed, our review of the record indicates that the Board's final decision considered the entirety of testimony provided by Roman in all the hearings.
Although not rising to the level of a due process violation, and not questioned by Roman, we note that it would have been advisable that a different appeals examiner conduct the final Appeal Tribunal hearing because there were two remands due to her decisions to only hear the employer's testimony. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION