CLEVELAND M. REGIS v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT and INTERNATIONAL PAPER COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4546-10T1

CLEVELAND M. REGIS,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND WORKFORCE DEVELOPMENT

and INTERNATIONAL PAPER COMPANY,

Respondents.

______________________________________

May 15, 2012

Argued April 30, 2012 - Decided

Before Judges Sabatino, Ashrafi and Fasciale.

On appeal from Board of Review, Department of Labor and Workforce Development, Docket No. 317,048.

Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Zachary R. Wall, on the brief).

George N. Cohen, Deputy Attorney General, argued the cause for respondent Board of Review (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Cohen, on the brief).

Respondent International Paper Company has not filed a brief.

PER CURIAM

Cleveland M. Regis appeals from an April 12, 2011 final agency decision rendered by the Board of Review, Department of Labor, concluding that he is disqualified to receive unemployment benefits. We vacate the decision, remand, and direct that further proceedings be conducted regarding the relationship between Regis and the decedent and the employer's policy on documentation of excused absences.

Regis worked as a shipping clerk for approximately five years. His employer implemented an attendance point program (the program) to discourage excessive absenteeism and, as a result, employees were permitted up to ten points before being terminated. Pursuant to the program, points were not assigned for funeral leave, provided that the employee produced an obituary or death certificate.1 As of June 2010, Regis had accumulated eight and one-half points.

In November 2010, Regis requested leave to accompany his mother and attend funeral services in Virginia for a decedent that he represented to be his grandfather. The employer approved the request, Regis attended the service, and thereafter Regis produced the decedent's obituary. The obituary did not mention Regis or Regis's mother.2 His employer then requested additional documents, such as his mother's birth certificate, to verify that the decedent was Regis's grandfather. Regis explained that no written verification existed, and stated that "he was embarrassed to put [his] family business out there," but offered to his employer "telephone numbers . . . for [his] family members to confirm that [the decedent] was [his] grandfather." There is no evidence in the record that Regis's employer contacted these family members. After Regis failed to produce written verification, and although his employer was "not clear what [Regis] was trying to [explain]," the employer retracted its approval, determined that Regis obtained in excess of ten points, and terminated him.

In February 2011, an Appeal Tribunal conducted a telephonic hearing. The employer produced two managers and a human resource specialist. Regis testified and produced a union representative. The Appeal Tribunal determined that Regis's "failure to provide the additional documents" constituted severe misconduct, pursuant to N.J.S.A. 43:21-5(b), and upheld a Deputy's determination that Regis was disqualified from receiving unemployment benefits.

In April 2011, the Board upheld the Appeal Tribunal's findings, but for different reasons, and disqualified Regis from receiving benefits. The Board stated that:

[W]e agree with the decision reached [by the Appeal Tribunal] except [that] the cause of the discharge was [Regis's] unauthorized absences, which were unapproved [by the employer] because [Regis] was unable to establish that the funeral he attended was for his grandfather. The employer's testimony satisfies us that the funeral was not for [Regis's] grandfather.

This appeal followed.

On appeal, Regis argues that (1) the Board's final decision was arbitrary, capricious, and unreasonable; and (2) he did not engage in severe misconduct. Because we conclude that the relationship between Regis and the decedent and the employer's policy on documentation of excused absences remain ambiguous, we reverse and remand for further proceedings. As a result, we need not reach whether Regis's actions constituted severe misconduct pursuant to N.J.S.A. 43:21-5(b). That determination should be made by the Appeal Tribunal and the Board of Review in the first instance on a complete record.

Our role in reviewing a final administrative agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999); Clowes v. TerminixInt'l, Inc., 109 N.J. 575, 587 (1988). We must defer to a final agency decision unless it is arbitrary, capricious, unsupported by substantial, credible evidence in the record, or in violation of express or implicit legislative policy. Taylor, supra, 158 N.J. at 656-57. We must, therefore, determine whether the agency's findings could have reasonably "been reached on sufficient credible evidence present in the record considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Id. at 656 (internal quotation marks omitted) (quoting Close v. KordulakBros., 44 N.J. 589, 599 (1965)). If we find sufficient, credible evidence in the record to support the agency's conclusions, then we must affirm even if we would have reached a different result. Clowes, supra, 109 N.J. at 588; Goodman v. London MetalsExch., Inc., 86 N.J. 19, 28 (1981).

If, however, our review of the record leads us to conclude that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M.v. State, Div. ofMed. Assist. & HealthServs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. Taylor, supra, 158 N.J. at 657.

It is undisputed that Regis attended the funeral. The Appeal Tribunal and employer focused on written verification to establish Regis's familial relationship with the decedent. The record does not establish clearly what the employer's policy was regarding documentation to prove the reason for an excused absence. Although the policy states that "[a]n [o]bituary or a [d]eath [c]ertificate is required" for "[f]uneral [l]eave," it does not state what is required to prove the relationship of the employee and the decedent if those documents are not conclusive. We cannot tell from this record whether employees knew that they would have to establish the family relationship if customary documentation could not be obtained.

Here, the employer and the Appeal Tribunal did not pursue Regis's offer to establish the relationship by contacting Regis's family members. While we would not impose such a duty on the employer, we cannot determine whether any alternative was available for Regis to prove the relationship. The Board of Review did not specifically state whether it considered it to be severe misconduct for Regis to be absent without being able to prove the legitimacy of his absence.

We need not discuss the precise explanation Regis gave before the Appeal Tribunal regarding his family relationships. It is sufficient for our purposes to state that Regis was not aware that the decedent was his biological grandfather until he was an adult, and he did not have a lifelong relationship with the man. Nevertheless, Regis believed it was his obligation to accompany his mother and to support her at the funeral.

Regis maintains that although no document would verify that the decedent is his grandfather, the decedent was in fact his biological grandfather, he attended the funeral, and his employer wrongfully assessed him with additional points pursuant to the program. The full extent of the relationship between Regis and the decedent, however, was not fully developed before the Appeal Tribunal. The present record is also murky as to the actual extent that Regis attempted to explain these family circumstances, which he characterizes as embarrassing, to his employer before he was discharged, and the reasonableness of his attempt.

We are unable to conclude that the Board's final decision could have reasonably been reached on sufficient credible evidence, considering the undisputed ambiguity of the familial relationship and the employer's policy on documentation of absences. We therefore vacate the agency's decision, remand, and direct that the record be more fully developed by considering testimony from Regis's family members, or any other competent evidence. See In reKallen, 92 N.J. 14, 30-31 (1983) (noting the propriety of reopening administrative agency hearings in certain circumstances to allow for additional proofs). In addition, the employer may supplement the record concerning its policy on documentation of excused absences, especially in unusual circumstances where the available documents may not be conclusive.

1 The employer testified during the Appeal Tribunal hearing that "[o]ur contract provides an excused absence for a grandfather who is considered a member of the immediate family." The employer faxed to the Appeal Tribunal its union contract, which was marked at the hearing as "employer exhibit one." The Appeal Tribunal made no findings, however, regarding whether an employee's absence would be excused for attendance at any funeral or, as the employer testified, only those funerals for immediate family members. We received a post-argument submission enclosing the same union contract produced at the hearing before the Appeal Tribunal. Regis did not dispute then, and does not dispute now on appeal, that the funeral provision excused only funerals of immediate family members.

2 Regis explained that his aunt, who was "not on good terms" with his mother, wrote the obituary and excluded reference to him and his mother.