WALTER D. JOHNSON v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3376-05T53376-05T5

WALTER D. JOHNSON,

Appellant,

BOARD OF REVIEW,

Respondent.

_____________________________________________________________

 

Submitted October 24, 2006 - Decided November 28, 2006

Before Judges Axelrad and R. B. Coleman.

On appeal from the Board of Review, Department of Labor.

Walter D. Johnson, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Walter D. Johnson, appeals from the Final Decision of the Board of Review, which concluded that his discharge from employment as a mechanic with J.D. Automotive and Truck was for misconduct under N.J.S.A. 43:21-5(b). That statutory provision states, in relevant part:

An individual shall be disqualified for benefits: . . . For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week (in addition to the waiting period), as determined in each case.

The Board accepted and affirmed the findings and recommendation of the Appeals Examiner of the Appeal Tribunal that overturned a Deputy Director's determination of eligibility. The Appeal Tribunal concluded that claimant's response at a shop meeting to the employer's inquiry concerning what could be done to reduce the "amount of comebacks" and to improve workmanship constituted misconduct. Claimant's response was that if the employer would stop running around the shop like a "lunatic," he would be able to get some work done. The Appeals Examiner reasoned that for an employee to describe his employer as a lunatic in front of co-workers was not only unprofessional, but also improper and a disregard for the standards of behavior which the employer has the right to expect of his employees.

In the hearing conducted by telephone on January 4, 2005, three witnesses testified: James Dodd, the President of the employer; claimant; and Kim Johnson, claimant's wife. Dodd's version of what happened is as follows:

During that meeting, when I was discussing the amount of comebacks and why they were coming back, Mr. Johnson told me that he could not focus on his work and concentrate if I continued to run around the shop like a lunatic.

Thereafter, when the Appeals Examiner asked whether "that [was] the comment that [claimant] was discharged for?," Dodd testified:

Yes and I tried to and I've had this discussion with Walt before about [being] confrontational in front of other employees. I actually had a one on one sit down previous to this with Mr. Johnson for his outburst when I was trying to have the shop meeting to address the issues as a business owner and I asked him not to do it. He did it again during that shop meeting and . . . that's why he was discharged.

Elaborating further, Dodd stated:

Actually the actual comment is "how do you expect me to concentrate on my work when you're running [around] here like a lunatic" and I said, "please don't do that Walt" and you continued to do it and that's when I said, Walt "you're done." That was my exact comment, "Walt you're done" and you walked out of the building.

Claimant's testimony about what he said was actually consistent with Dodd's version of the event, but claimant could not recall specifically the words he used. He testified:

A. . . . I was simply answering a question to Mr. Dodd.

Q. And what was your response?

A. That maybe morale and business was down in the shop prior to this incident that he was yelling going through the shop mad at what we have no idea. Throwing things and saying that somebody was going to get fired today.

Q. Did you say that the employer [was] running around like a lunatic?

A. Well yeah. That's what I meant. Like he was throwing things around the shop and using profanity and you know holding people accountable for stuff that wasn't even going on in the shop.

Q. Okay. But that's the term you used running around like a lunatic?

A. Yeah. Yeah. I don't think I really used that specific term.

Q. Well what term do you think you used?

A. That he was you know causing the morale to be down in the shop fight [sic]. Running through the shop yelling and cursing and throwing things.

. . . .

Q. Okay. And I just want to clarify -- at first you said that you may have used the term running around like a lunatic and then you said you weren't sure. What was said?

A. What do you mean what was that?

Q. I want to know if that term was used running around like a lunatic? First you said it was and then you said it wasn't.

A. Oh I -- who knows. I don't remember.

Q. Okay.

A. If I said exactly that but.

Q. Okay. And were you discharged right -- in the middle of the meeting?

A. Yes I was.

The Appeals Examiner found that the employer's testimony was more competent, consistent, forthright and credible than claimant's testimony. Claimant asserts that Dodd made a false accusation that led to the discharge, and though claimant questions whether he ever used the term "lunatic," he clearly accused Dodd, in the presence of all the workers, of creating and maintaining a chaotic work environment.

The scope of our review is limited. "Unless a court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Thus, "[i]n reviewing the factual findings made in an unemployment compensation proceeding, 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. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).

Based upon our review of the record, we are satisfied that the decision of the Board is supported by substantial, credible evidence in the record and the agency's ruling is not arbitrary, capricious and unreasonable.

Affirmed.

 

Claimant's wife was not present during the alleged confrontation and her testimony, supportive of her husband, was not factual. Her opinion was that claimant did his job and "if an employee does his job to the best that he can to work up to his employer's standards and yet still gets fired, that is not his or her fault." The employer conceded that claimant was not fired for the quality of his work, but rather for misconduct during the shop meeting.

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A-3376-05T5

November 28, 2006