RANDALE L. CUMMINGS v. BOARD OF REVIEW, DEPARTMENT OF LABOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3183-06T33183-06T3

RANDALE L. CUMMINGS,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, STATE OF NEW JERSEY, and

CLASS A TRANSPORTATION LLC.,

Respondents.

_________________________________________________

 

Argued January 30, 2008 - Decided

Before Judges Axelrad and Payne.

On appeal from a Final Decision of the Board

of Review, Department of Labor and Workforce

Development, Docket No. 127,559.

Richard J. Bennett argued the cause for

appellant (Central Jersey Legal Services, Inc., attorneys; Mr. Bennett, on the brief).

George N. Cohen, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; John C. Turi, Deputy Attorney General, on the brief).

PER CURIAM

Claimant Randale Cummings appeals from a final decision of the Board of Review finding him ineligible for unemployment benefits because he left his former employment voluntarily, without good cause for doing so. N.J.S.A. 43:21-5(a).

The record discloses that, following the conclusion of his employment by respondent, Class A Transportation LLC, Cummings sought unemployment compensation under the provisions of New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.4. Finding that Cummings was discharged for misconduct connected with his work, the Deputy imposed a disqualification from receipt of benefits from August 13, 2006 through September 23, 2006 pursuant to N.J.S.A. 43:21-5(b).

Cummings appealed, pro se, and a telephonic hearing was conducted before an Appeal Tribunal examiner at which testimony was provided by Cummings, his employer's principal, James Witt, and a co-employee, John DiLasso, called to testify by Witt. The transcript of the hearing discloses that Cummings was a van driver for Class A, a limousine service. While transporting a customer, a deer hit the back of Cummings's van, causing minor damage. Cummings did not immediately report the collision, but instead continued on his route, reporting the accident to Witt only when he returned to his employer's garage. Upon making his report, Witt asked why Cummings had not called to report the accident when it occurred. Cummings responded that he did not know he was required to do so. When the two men then went outside the office to view the damage, or at some point prior thereto, a dispute arose, and voices were raised.

According to Witt:

The phone rang. I [Witt] picked up the phone. I took a reservation. He [Cummings] had walked outside. I walked outside to meet him. He was in front of the vehicle and . . . started to rant and rave. He started to [conduct] what I call a "fit." "I don't need this." This is "f --- ing bs" yada yada. So then he ran back into the office yelling and screaming. He was cursing and screaming. I tried to calm him down but I didn't have any success in it. He said, "he didn't need this bs and f --- this and f --- that." He quit.

* * *

He went in and out of the buildings screaming, ranting and raving. He doesn't need this. He doesn't need the aggravation blah, blah, blah back and forth. So I said to him if you quit, hand in your keys. I'll give you your paycheck. End of story. He went out to his car. I don't need this, blah, blah, blah back and forth and raced out of the parking lot. Fifteen to 20 minutes later he returned. He had his keys in his hand. He handed me those keys. I handed him his paycheck. He proceeded on this way.

Witt additionally testified that he would not have discharged Cummings for being hit by a deer or for his failure to timely report the accident. However, Cummings would have been terminated for his angry outburst (reportedly, not the first) if he had not already determined to leave voluntarily. The testimony of co-employee DiLasso essentially corroborated the facts set forth by Witt.

In contrast, Cummings testified:

I walked into the office. Mr. Witt was in the office. I told him [he] had to come out I had to show him something. He went outside. Walked around the van. He seen it. He said what happened. I told him a deer hit the van and he said why didn't you call in? And my response to him was I didn't know. He kept going on and on and on. He walked back into the office. I followed him back inside. Then he tells me why didn't you call? I said I didn't know. I never been in an accident with you before. Then he starts using profanity. Then he said to give him the keys. I gave him his keys to the front gate, the main gate and the back door. At that point in time, I told him I'm not going to take it anymore. I'm going to get an attorney and I'm going to see you in court. Then he started calling me the "f" word.

Cummings testified that this was not the first time that he had been cursed at by Witt in front of co-workers, and that at the conclusion of this incident, he thought he had been fired, because Witt requested Cummings's keys. According to Cummings, "[w]hen I left, I got in my car and I went to call my attorney. That's what I did." He did not return except to pick up an additional paycheck.

Near the conclusion of the hearing and after all substantive testimony had been given, the appeals examiner stated:

Should the issue of voluntary leaving come into your case, I want to read that into the record. The law provides "that if a claimant is found to have left the job voluntarily without any good cause attributable to the work, you'll be disqualified for benefits for the week they left and continue until they become re-employed for four weeks and earn six times their weekly benefit amount. If it is determined that claimant's leaving of the work was with good cause attributable to the work, there's no penalty." Mr. Cummings do you understand the law that [I] read?

Cummings stated on two occasions that he understood, and when asked whether he understood that there was a different penalty for a voluntary quit, Cummings responded: "I spoke to legal counsel about that. Yes." Additionally, in response to a question by Witt, the penalty for quitting voluntarily was explained: "The difference is basically misconduct holds a six week not getting paid for six weeks for the claimant. The voluntary leaving holds the claimant will not be paid at all." When Cummings was asked if he needed time to prepare for the issue of whether he had quit voluntarily, Cummings responded "No I do not."

In a decision mailed on November 21, 2006, the Appeal Tribunal examiner determined that no disqualification arose under N.J.S.A. 43:21-5(b), because Cummings was not discharged for misconduct connected with the work, but that "[t]he claimant left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 8/13/06 in accordance with N.J.S.A. 43:21-5(a)." The determination of the Appeal Tribunal was affirmed by the Board of Review in a final decision mailed on January 8, 2007. This appeal followed receipt of the Board's decision.

On appeal, Cummings makes the following arguments through counsel:

Point One

The procedures employed by the Department of Labor relating to Mr. Cummings' Appeal Tribunal hearing violated basic concepts of procedural due process and deny to him his right to a "fair hearing" as required by State and Federal law.

Point Two

The factual findings and legal conclusions of the Agency are unsupported by and inconsistent with the competent, relevant and reasonably credible evidence, and the decision to deny benefits is consequently arbitrary, capricious and unreasonable.

Following oral argument of the matter, we requested and received supplemental briefing on the following issues:

1. Is a counseled waiver of the right to pre-hearing notice of the issues to be considered invalid as a matter of public policy?

2. Where there is a limited denial of unemployment benefits and this decision is appealed by the claimant only, is the administrative agency permitted to expand the scope of the hearing to include an issue that can preclude benefits entirely.

I.

The scope of our review of the fact-finding by the agency in this matter is extremely limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "In 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) (citations omitted)). In this matter, we find in the evidence that we have discussed substantial, albeit controverted, factual support for the employer's position that Cummings voluntarily quit his employment without good cause attributable to his work, under the legal standards articulated in Brady. 152 N.J. at 213-15. Moreover, we find the informality with which the telephonic hearing was conducted in no way to have deprived Cummings of his due process rights. The procedures utilized in such hearings to resolve contested claims for unemployment benefits are designed to be informal in order to foster the statute's evident goals of achieving prompt resolution of eligibility issues without undue passage of time or unnecessary expense. See N.J.S.A. 43:21-6(f) (declaring that the manner in which disputed benefit claims shall be resolved "shall be in accordance with rules prescribed by the board of review for determining the rights of the parties, whether or not such rules conform to common law or statutory rules of evidence and other technical rules of procedure"); N.J.A.C. 12:20-3.2 (adopting procedures set forth in N.J.A.C. 1:12) and N.J.A.C. 1:12-14.1 (setting forth procedures, including degree of assistance to be given to pro se parties); In re Bell Atlantic NJ, Inc., 342 N.J. Super. 439, 443-45 (App. Div. 2001) (holding that the type of administrative hearing required depends on the nature of the case). Our review of the record satisfies us that the procedures utilized in this case accomplished these goals, without any discernable diminution in Cummings's rights.

II.

As our request for supplemental briefing in this matter discloses, our initial concerns in this case centered upon (1) whether the Appeal Tribunal and Board of Review were authorized to consider whether Cummings should be totally disqualified from receipt of benefits because he had voluntarily quit his employment without good cause attributable to his work, when his appeal was limited to whether he should receive a limited disqualification as the result of an alleged termination for cause; (2) whether Cummings received adequate notice of the issue of voluntary termination raised by the Appeal Tribunal; and (3) whether his waiver of a right to an adjournment was knowing and intelligent or otherwise in violation of public policy. In the circumstances of this particular case, we find no procedural due process violation to have occurred.

In his supplemental appellate brief, Cummings relies upon our opinion in Von Ouhl v. Bd. of Review, 254 N.J. Super. 147 (App. Div.), certif. denied, 130 N.J. 10 (1992), claiming that precedent limits the scope of appellate review to the issue raised by the appellant when no cross-appeal has been filed by the employer or the State. The State relies upon our opinion in Heulitt v. Bd. of Review, 300 N.J. Super. 407 (App. Div. 1997), arguing that decision supports its position that the Appeal Tribunal and the Board of Review have jurisdiction to deny unemployment benefits to a claimant on statutory grounds other than that found by the Deputy upon initial review.

We find Von Ouhl to be inapposite as precedent, here. In that case, the claimant, employed part-time as an animal holder for an animal clinic and part-time as a substitute teacher, applied for unemployment benefits when, on July 2, 1990, the animal clinic terminated her employment. That application resulted in three determinations: (1) that claimant was ineligible for benefits from July 29 to August 4 because of her failure to report to the local unemployment office on August 3; (2) she was ineligible for benefits commencing on July 15 because she was claiming benefits during a summer recess from her employment and likely re-employment as a teacher by an educational institution; and (3) she had quit her job as an animal handler voluntarily without good cause attributable to her work.

Upon appeal of all three determinations, the Appeal Tribunal concluded in a single ruling that claimant had not voluntarily left her job, resulting in disqualification from receipt of benefits under N.J.S.A. 43:21-5(a), but that since she had reasonable assurance of recall as a substitute teacher, she was nonetheless ineligible for benefits from July 15 to September 1, 1990. The Appeal Tribunal found it unnecessary to reach the third ground for disqualification. Although claimant then appealed only the disqualifying decision centering on her employment as a teacher, and no cross-appeals were filed, the Board of Review determined that claimant had voluntarily quit her job and denied benefits on that basis, requiring refund of benefits paid.

We held that the Board exceeded its jurisdiction by considering disparate issues, unassociated by facts or applicable law, that were beyond the limited scope of the claimant's final appeal. Von Ouhl, supra, 254 N.J. Super. 152-54. In doing so, we noted that "each of the deputy's determinations was based on different operative factors and had different potential consequences" and that those determinations did not lose their separate character in the course of subsequent appeals. Id. at 152. We then concluded: "There is nothing in the enabling legislation governing the Board of Review or its implementing regulations which indicates that an appeal of one part of an Appeal Tribunal's decision automatically subjects every other part of the decision to the Board's review. Ibid.

In contrast to Von Ouhl, in the present case, Cummings's claim for benefits, the Deputy's denial and both the Appeal Tribunal's and Board of Review's affirmance of that denial on alternative grounds all stem from a single set of "operative factors" the circumstances surrounding Cummings's termination as a van driver. That termination was susceptible to three potential interpretations: (1) Cummings had been terminated for cause and thus was subject to a limited period of disqualification; (2) Cummings had quit voluntarily for good cause attributable to the work and thus was subject to no disqualification; or (3) Cummings had quit voluntarily without good cause attributable to the work and thus was totally disqualified from receipt of benefits. In practical terms, as Cummings appears to have discussed with the attorney with whom he consulted, Cummings's appeal from the Deputy's determination that he had been terminated for cause, if successful, could only result in a determination that he had quit either for good cause attributable to the work or for personal reasons. That the Appeal Tribunal, having found that Cummings was not fired, had the power to resolve the factual issue of the reason for Cummings's departure from work is implicit in N.J.S.A. 43:21-6(c) and (e) governing, respectively, the powers of the Appeal Tribunal and the Board of Review. See also Ludwigsen v. New Jersey, 12 N.J. 64, 70 (1953).

Our rationale accords with that utilized in Heulitt. In that case, the claimant was initially found to have left his employment without good cause attributable to the work. On appeal, the Appeal Tribunal reversed the initial decision, but imposed a more limited period of disqualification after finding that the claimant had failed to apply for available, suitable work. N.J.S.A. 43:21-5(c). Upon further appeal to the Board of Review, the Board reinstated the initial decision of the claims examiner. When the matter came before us, we affirmed the Board's decision, determining that it had the jurisdiction to reinstate the claims officer's decision, despite the fact that the "good cause" issue had not been raised on appeal by the claimant, any other interested party, or directly by the Board prior to its ruling. Heulitt, supra, 300 N.J. Super. at 411-12. In language relevant to the present matter, we observed in Heulitt: "Appellant could not reasonably have expected that the Board would limit its inquiry to one narrow question and ignore the overriding issue in the case his eligibility to obtain benefits." Id. at 413. We reasoned, in part, as follows:

If we were to conclude that the Board erred in reviewing the Appeal Tribunal's holding under N.J.S.A. 43:21-5(c) a holding which was patently wrong the result would be to grant appellant, and others similarly situated, a windfall. The Board's duty is to "preserve the [unemployment compensation] fund for the payment of benefits to [eligible] individuals and to protect it against the claims of others who would prefer benefits to suitable jobs." Krauss v. A. & M. Karagheusian, Inc. 13 N.J. 447, 455 (1953). The basic policy of the law is advanced when benefits are rightly denied in improper cases as well as when they are rightly granted in proper cases. Id. at 455-56. Constriction of the Board's review posers would contravene this important public policy with no visible compensating gain.

[Heulitt, supra, 300 N.J. Super. at 412.]

We thus reject any claim by Cummings that the Appeal Tribunal and the Board exceeded their jurisdiction in completely determining the issue whether Cummings's termination of employment was the result of being fired or of his determination to leave, whether for good cause or for personal reasons.

III.

The final issue raised by this appeal is whether Cummings received adequate notice that the issue of his voluntary departure from his employment would be addressed by the Appeal Tribunal and whether he knowingly and intelligently waived his rights to an adjournment to permit him to meet that issue. In this connection, the parties do not contest the principle that a claimant is entitled to notice of the issues to be considered at a hearing on benefit eligibility. See, e.g., Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992); Agresta v. Bd. of Review, 232 N.J. Super. 56, 63 (App. Div. 1989); Malady v. Bd. of Review, 166 N.J. Super. 523, 528 (App. Div. 1979); N.J.S.A. 52:14B-9(b) (detailing elements of notice under Administrative Procedure Act). In the present case, pre-hearing notice by the Appeal Tribunal that it would consider issues other than whether or not Cummings was terminated for cause was not given.

However, as we have noted, at the conclusion of the hearing, the appeals examiner informed Cummings that the "issue of voluntary leaving" might come into his case. Additionally, the examiner explained to Cummings that he would be disqualified from receipt of benefits if he were to find that Cummings left work voluntarily "without any good cause attributable to the work," but that there would be "no penalty" if he determined that "claimant's leaving of the work was with good cause attributable to the work. The examiner then asked Cummings whether he understood that "it holds a different penalty," and Cummings interrupted the examiner, stating that he had "spoke[n] to legal counsel about that." Cummings also stated that he did not "need time" to prepare for the issue.

In the limited circumstances presented here, we are satisfied that Cummings was adequately advised of the Appeal Tribunal's potential determination that he had left his employment voluntarily, that the consequences of such a determination depended on whether Cummings had left as the result of good cause attributable to the work, and that disqualification from receipt of benefits depended on whether good cause were shown. Our review of the evidence also satisfies us that Cummings, having acknowledged that he had discussed the newly-presented issues with counsel, knowingly and intelligently waived his right to an adjournment in order to address them. See LaManna v. Proformance Ins. Co., 184 N.J. 214, 223-25 (2005) (holding that constitutional rights may be waived); E.I. du Pont de Nemours v. State, 283 N.J. Super. 331, 355-56 (App. div. 1995) (holding that in the context of a civil matter, constitutional rights may be waived if done so knowingly and deliberately); see also State v. Standard Oil Co., 5 N.J. 281, 305 (1950), aff'd, 341 U.S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951) (determining that the hallmark of adequate notice involves "such notice as in keeping with the character of the proceedings and adequate to safeguard the right entitled to protection."). Further, we are satisfied that a recognition by the Appeal Tribunal of Cummings's waiver of his right to an adjournment, in the circumstances presented, represented a fair balancing of the need for expeditious resolution of claims and the requirements of due process, and did not violate public policy.

 
Affirmed.

Respondent Class A. Transportation LLC, has not filed a brief.

The State notes that Cummings's notice of appeal to the Appeal Tribunal did not limit the issues appealed. Further, the printed notice of appeal, executed by Cummings, contained the statement: "A HEARING WILL BE SCHEDULED WHICH WILL COVER THE DETERMINATION APPEALED, AND MAY INCLUDE ANY OTHER MATTERS AFFECTING THE CLAIMANT'S RIGHT TO BENEFITS UP TO THE TIME OF THE HEARING."

In contrast, we have found in the present matter that the Appeal Tribunal's determination was supported by competent, credible evidence. We find no reason to determine whether the Deputy's decision was "patently wrong."

(continued)

(continued)

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A-3183-06T3

June 25, 2008