VIOLA S. SANDERS 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NOT FOR PUBLICATION WITHOUT THE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-0

VIOLA S. SANDERS,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR

and NJ TRANSIT BUS OPERATIONS, INC.,

Respondents.

January 29, 2014

Submitted January 22, 2014 Decided

Before Judges Reisner and Carroll.

On appeal from the Board of Review, Department of Labor, Department of Labor, Docket No. 365,368.

Karpf, Karpf & Cerutti, attorneys for the appellant (Katie A. Pilgren-Beatty, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief).

Respondent New Jersey Transit Bus Operations has not filed a brief.

PER CURIAM

Claimant ViolaS. Sandersappeals fromthe finaldecision of the Board of Review, which deemed her ineligible for benefits, based upon the administrative determination that she was terminated from her job for severe misconduct. N.J.S.A. 43:21- 5(b). The primary question is whether Sanders' reinstatement by her employer "rescinded" her discharge, thus rendering her eligible to receive unemployment benefits under the statute. Because we find under the somewhat unique circumstances of this case that it did, we reverse and remand for calculation and payment of those benefits.

New Jersey Transit Bus Operations, Inc. (NJT) employed Sanders as a bus operator from May 7, 1998, until November 14, 2011. The employer's attendance policy limited lateness or absences from work, and required employees to call before the beginning of their shift if they were going to be late or absent. Using a point system to evaluate attendance, NJT terminated employees when they reached twenty points.

Sanders was terminated after arriving late for work on November 14, 2011, because of a traffic accident on the New Jersey Turnpike. She had called in approximately ten to fifteen minutes before her shift to advise her employer that she would be late. She had received both written and verbal warnings regarding her attendance before that date. NJT charged her two points for her November 14, 2011 lateness and, because she had now accumulated twenty points, terminated her.

Sanders then appealed her termination through a union grievance. She also filed a claim for unemployment benefits. In December 2011, a Deputy Director for the Division of Unemployment and Disability Insurance ruled that Sanders was disqualified for benefits because she was discharged for severe misconduct connected with work due to repeated lateness.

Sanders filed an appeal of the Deputy's determination. The Appeal Tribunal conducted telephonic hearings on February 10 and February 13, 2012. The examiner listened to testimony from Amos Dickerson, NJT's terminal manager, and Sanders. Dickerson testified that NJT used a point system to monitor its employees' attendance. He explained that employees are assigned two points each time they are late for work. Dickerson indicated that before discharging Sanders, NJT had issued different levels of warning to her for violating the policy, including one-day, three-day, five-day and ten-day suspensions, although Sanders had not received the ten-day suspension before the November 14, 2011 incident. Sanders had gone "through the process," and was charged two points when she arrived late that day. This brought her total to twenty points, and she was terminated as a result. At the time of Dickerson's testimony, Sanders' union grievance remained pending.

Sanders testified that she was "between one and five minutes late" three to four times per month. She acknowledged having received written warnings and suspensions for lateness, and was aware that she could be discharged when she accumulated twenty points. She stated that she did leave her house early, in order to arrive at work on time. She explained that on November 14, 2011, when she was only about five minutes from work, there was an accident on the Turnpike, and as a result her lateness on that date was both unintentional and unavoidable. To corroborate her position, she introduced a January 25, 2012 letter from the New Jersey Turnpike Authority stating:

This is to advise that on November 14, 2011 at approximately 11:48 a.m. there was a motor vehicle accident at Interchange 14 which caused the right lane of travel to be blocked. This accident and subsequent lane blockage caused congestion for motorists heading toward the Lincoln Tunnel. Our records indicate that this accident was cleared at 12:51 p.m.

In upholding the Deputy's determination that Sanders was ineligible to receive unemployment benefits, the Appeal Tribunal found that Sanders was discharged for chronic lateness and that she was approximately one to five minutes late two to three times a month. The Tribunal reasoned that Sanders' lateness "could have been prevented and/or corrected if the claimant had taken the reasonable step to leave for work earlier." It concluded that Sanders' late arrival on November 14, 2011, which resulted in her discharge, and her receipt of prior written warnings for "this behavior," constituted severe misconduct connected with the work.

Sanders then appealed to the Board. On June 27, 2012, the Board remanded the matter to the Appeal Tribunal, citing the "need for additional testimony from the claimant and the employer whether discharge was rescinded and the reason that the claimant was rehired."

Notably, NJT did not appear at the July 27, 2012 remand hearing, nor has it participated in the present appeal. At the remand hearing, Sanders testified that NJT had reinstated her employment on April 14, 2012. She introduced in evidence an Arbitrated Settlement Agreement, which represented that NJT and the union "have carefully reviewed the facts of this case and due to the unique and extenuating circumstances, have agreed that [] [Sanders] will be reinstated on or about April 14, 2012 without any back pay or benefits." This "Last Chance Agreement" additionally provided that any discipline or written warning in the first twenty-four months following reinstatement "shall result in her immediate discharge." As of the July 27, 2012 hearing, no such warning or discipline had issued, and Sanders remained employed by NJT.

On August 2, 2012, the Appeal Tribunal, essentially citing Sanders' same lateness that formed the basis for its initial ruling, again determined that she was disqualified for benefits under N.J.S.A. 43:21-5(b) because she was discharged for severe misconduct connected with the work. The decision is silent as to the effect of NJT's subsequent reinstatement of Sanders' employment. The Board of Review upheld this determination on October 11, 2012. The Board ruled:

We agree with the Opinion of the Appeal Tribunal for the reasons set forth therein. Additionally, although claimant was reinstated on April 14, 2012, it was without back pay and under a last chance agreement, and ultimately considered a suspension with cause. Hence, the discharge was not rescinded and the claimant remains disqualified for benefits as of November 13, 2011, under N.J.S.A. 43:21-5(b), on the ground that [she] was discharged for severe misconduct connected to the work.

This appeal followed.

On appeal, Sanders focuses on the events that occurred on the day she received her twentieth point and her employment with NJT was initially terminated. She argues that her lateness on November 14, 2011, was "a direct consequence of an unforeseeable accident," was unintentional, and did not amount to severe misconduct so as to disqualify her from benefits. The Board, however, contends that Sanders' disciplinary history of written warnings and suspensions prior to her tardiness on November 14, 2011, clearly falls within the proscribed language covering "repeated lateness or absences after a written warning by an employer." N.J.S.A. 43:21-5(b). Neither party, however, directly addresses the issue we find to be determinative, i.e., whether Sanders' reinstatement by NJT rendered her eligible for benefits.

In reviewing this final agency decision, we give substantial deference to the Board of Review. Our main focus is whether the Board's determination was arbitrary, unreasonable or capricious, or unsupported by the record. Bailey v. Bd. of Review, 339 N.J. Super.29, 33 (App. Div. 2001). The deference to an agency's findings of fact "is premised on our confidence that there has been a careful consideration of the facts in issue and appropriate findings addressing the critical issues in dispute." Ibid. However, the Court may reject the Board's conclusions where they reflect a misapplication of unemployment statutes and regulations. Silver v. Bd. of Review, 430 N.J.Super.44, 58 (App. Div. 2013).

In July 2010, the Legislature amended N.J.S.A.43:21-5(b) by providing that an employee engaging in severe misconduct is disqualified for unemployment benefits and listing examples of what constitutes severe misconduct. The amended statute reads, in part, that an individual "shall be disqualified for benefits"

[f]or the week in which the individual has been suspended or discharged for severe misconduct connected with the work . . . . Examples of severe misconduct include, but are not necessarily limited to, the following: repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer . . . .

[N.J.S.A. 43:21-5(b).]

"Our paramount goal in interpreting a statute is to give effect to the Legislature's intent." Wilson ex rel. Manzano v. City of Jersey City, 209 N.J.558, 572 (2012). To do so, "courts begin with the language of the statute." In re Kollman, 210 N.J.557, 568 (2012). Statutory words gain their meaning and significance by reading them within the context of the legislation as a whole. SeeDiProspero v. Penn, 183 N.J.477, 492 (2005). We discern from a plain reading of the text of N.J.S.A.43:21-5(b) that repeated lateness or absences from work, after an employer issues a written warning, constitute severe misconduct and thereby disqualify an individual from receiving unemployment benefits.

Importantly, however, the 2010 statutory amendment left intact the succeeding paragraph of the statute. It provides:

In the event the discharge should be rescinded by the employer voluntarily or as a result of mediation or arbitration, this subsection (b) shall not apply, provided, however, an individual who is restored to employment with back pay shall return any benefits received under this chapter for any week of unemployment for which the individual is subsequently compensated by the employer.

[N.J.S.A. 43:21-5 (b).]

The Appeal Tribunal's August 2, 2012 decision completely ignored this statutory "reinstatement" provision, even though it was intended to be the express focus of additional testimony pursuant to the Board's initial remand. While the Board did go on to consider it, the Board adopted a strained interpretation of the statute, finding that, "although claimant was reinstated . . . [her] discharge was not rescinded." We disagree, and determine that the Board's interpretation is contrary to the plain language of the statute.

While this "reinstatement" provision contained within N.J.S.A.43:21-5(b) obligates claimants who were discharged due to misconduct, and then restored with back pay, to return any unemployment benefits received, there is nothing in the statute that renders claimants who were restored without back pay ineligible for benefits. Moreover, as the result of an arbitrated grievance, NJT reinstated Sanders' employment. While many of Sanders' past incidents of tardiness may have been inexcusable, as the Board found, it is apparent that NJT recognized that the severe November 14, 2011 traffic accident that led to her lateness and initial termination was in fact excusable and beyond her control. Thus, NJT acknowledged the "unique and extenuating circumstances," reinstated Sanders' employment, and ceased opposing her application for benefits. NJT thereby effectively "rescinded" Sanders' discharge. Consequently, her disqualification for benefits due to misconduct under N.J.S.A.43:21-5(b) did not apply. Accordingly we remand this case to the Board for calculation and payment of the benefits to which Sanders is entitled.