MARCO A. YAMUNAQUE 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NOT FOR PUBLICATION WITHOUT THE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

MARCO A. YAMUNAQUE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and SHUTTLE

ASSOCIATES, L.L.C.,

Respondents.

May 25, 2016

Submitted March 16, 2016 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Board of Review, Department of Labor, Docket No. 024958.

Marco A. Yamunaque, appellant pro se.

Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief).

Respondent Shuttle Associates, L.L.C., has not filed a brief.

PER CURIAM

Marco A. Yamunaque appeals from the October 3, 2 014 Board of Rev.ew final decision affirming the Appeal Tribunal's earlier ruling that he was disqualified from receiving benefits because he left employment without good cause attributable to the work. See N.J.S.A. 43:21-5(a). We reverse and remand for a new hearing, as the factual circumstances were not sufficiently developed at the Appeal Tribunal hearing.

We summarize the facts we can discern from the transcript. Yamunaque, who does not speak English, was a Newark International Airport shuttle bus driver for some four years, transporting airline employees. On May 14, 2014, as he had for some unspecified time prior, he worked the 5:30 a.m. to 2:00 p.m. shift. When Yamunaque returned at the end of his run at approximately 1:30 p.m., the next driver was late. According to Yamunaque, this was a recurring problem. He testified that after the next driver took over, he went into the employer's onsite trailer to complain. Two supervisors were present, neither of whom spoke Spanish. Yamunaque claimed both supervisors raised their voices at him, telling him he had "no excuse and . . . should get out of there."

As to this key testimony, the Hearing Examiner and the interpreter disagreed as to the complete meaning Yamunaque was attempting to convey by his responses. Clearly, however, Yamunaque believed he was fired.

After the incident, Yamunaque called the company's human resources department in New York City to complain about the incident. The examiner attempted to question Yamunaque as to his motive for calling human resources if he believed he was fired, but it is not clear from the transcript if the question was adequately translated. Yamunaque answered only that he called New York City because when he returned to the trailer to complain, the office was closed.

The employer's representative, a bilingual administrative assistant who said she was in the office when the incident occurred, testified to the contrary. She claimed that passengers on the bus had called in to the company's central office concerned that they would be late for work because Yamunaque walked off the bus and left it unattended a violation of company policy.

The administrative assistant also testified that she was present when Yamunaque confronted the employer, and that he was only suspended for two days, not fired. She also related that a few minutes after he was confronted by the supervisors, Yamunaque turned in his uniform and parking pass. It is not clear if anyone asked him about that or if he made any statement as he did so.

The shortcomings in the record may well be the result of the practical difficulties the Hearing Examiner faced during the proceedings. At various times, the flow of the questioning was interrupted because of problems in obtaining a translation of the testimony. The Hearing Examiner issued instructions throughout, at times cutting off a witness's testimony to have responses partially translated; it is not clear that full answers were ever received. At other times, the examiner appeared to disagree with the translation. In fact, towards the end of the hearing, on the issue of complaints Yamunaque made regarding unpaid vacation time, the examiner cut off the interpreter and said

EXAMINER: Okay. Momentito. Interpreter go ahead. Go ahead.

INT: I'm sorry. There's a little part that I didn't understand very well. Can I clarify please?

EXAMINER: No. But he add---there was an important answer to the question. I'm going to start the question over again. Can you interpret to the best what he just said or no Interpreter? If not, I'm just gonna ask the same question.

INT: I just need to clarify a little piece of information from that answer he gave. That's all I'm asking.

EXAMINER: Go ahead.

INT: Thank you.

INTERPRETER TRANSLATES

EXAMINER: No. No. I'm gonna interject. No way. No way. Sorry. Sorry. This isn't gonna happen. We're gonna do this over and I'm calling the shots here today. So I'm gonna ask the question directly. Interpreter if you can't interpret it, just let me know. I can get another interpreter. I asked the same question again and it's gonna be a direct answer.

It is undisputed that Yamunaque bears the burden to prove that he is entitled to benefits. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). In order to qualify for benefits, Yamunaque must establish that he left his employment as a result of "good cause attributable to the work." Ibid. (citation omitted); N.J.A.C. 12:17-9.1(c). Although the statute does not define good cause, it has been construed "to mean 'cause sufficient to justify an employee[] . . . joining the ranks of the unemployed.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). The administrative regulation defines good cause as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b).

Our review of administrative agency decisions is limited. Brady, supra, 152 N.J. at 210. But that review requires a record that enables us to answer the question of whether the agency's factual findings are supported by sufficient credible evidence. Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985). If we cannot determine from a review of the transcript whether the Hearing Examiner's factual findings were supported by the record, or whether the Board's ultimate decision was supported by the record, we obviously cannot fairly decide the appeal. See Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).

The relevant dispute raises a fact-sensitive question whether Yamunaque's understanding that he was fired, as opposed to suspended for two days, was reasonable. If the answer is yes, the next question, one of law, is whether a reasonable but mistaken belief an employer has terminated an employee constitutes good cause that would qualify a claimant for unemployment benefits.

Acknowledging the difficulties inherent in telephonic interpreter-assisted hearings we nonetheless require a clearer record than is currently available. We therefore remand for a new hearing. We do not retain jurisdiction.

Reversed and remanded for a new hearing.