BRADFORD P. HUNT v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3544-04T23544-04T2

A-3918-04T5

BRADFORD P. HUNT,

Petitioner-Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR

and READINGTON TOWNSHIP

DEPARTMENT OF PUBLIC WORKS,

Respondent-Respondent.

_______________________

 

Submitted July 26, 2006 - Decided August 8, 2006

Before Judges Hoens and S.L. Reisner.

On appeal from a Final Decision of the

Board of Review, Department of Labor

43,781, 47,812.

Bradford P. Hunt, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent Board of Review (Patrick De Almeida, Assistant Attorney General, of counsel; Allan J. Nodes, Deputy Attorney General and Andrea R. Grundfest, Deputy Attorney General, on the brief).

Fisher & Phillips, attorneys for respondent Readington Township (David E. Strand, on the brief).

PER CURIAM

In separate appeals, Bradford P. Hunt challenges a final decision of the Board of Review denying his claim for unemployment benefits and the Board's final decision denying his subsequent claim for "disability during unemployment" (DDU) benefits. We affirm both of the Board's decisions. Because the two appeals are related, we address them in one opinion.

I

Hunt was employed by the Readington Township Department of Public Works (DPW) as a crew leader, a position that required him to drive a Township vehicle on a daily basis and to possess a valid New Jersey motor vehicle license and a commercial driver's license (CDL). Hunt's driver's license and CDL were suspended for seven months, commencing June 10, 2004, after he was convicted of driving while intoxicated. As a result of his inability to perform his job as crew leader, he was first demoted to a laborer position, and then suspended from employment since the laborer position also required him to have valid licenses. The suspension commenced on July 18, 2004; his employer advised him that he could apply for reinstatement when his driver's license and CDL were reinstated. Hunt therefore understood that he would be eligible for reinstatement to employment on January 6, 2005, when his license suspensions ended.

While Hunt was serving his suspension from work, he filed a claim for unemployment benefits. The Deputy denied the claim on the grounds that Hunt had left his employment without "good cause attributable to the work," citing his voluntary decision to drive while intoxicated and the resulting loss of his driving privileges:

You were employed in a position which required a valid driver's license as a prerequisite of employment. Your position was solely dependent on possession of this license. Employment ended when you lost this license for committing a voluntary act. You were aware that your actions could jeopardize your license. Therefore, your separation is considered to be a voluntary quit without good cause attributable to the work.

Hunt appealed and was granted a testimonial hearing before the Appeal Tribunal. The Appeals Examiner upheld the denial on the same basis as the Deputy, citing N.J.A.C. 12:17-9.9(a), which disqualifies from benefits an individual whose voluntary act results in "the loss of a prerequisite license which is necessary to perform the duties of his or her employment." The Examiner also relied on Yardville Supply Company v. Board of Review, 114 N.J. 371 (1989), in which the Supreme Court held that an employee who lost his job after his driver's license was suspended due to a DWI conviction was properly denied unemployment benefits:

Where it is reasonably foreseeable that an employee's voluntary conduct will render him unemployable, and his actions actually do lead to the loss of a prerequisite of employment, the employee leaves work voluntarily without good cause attributable to such work under N.J.S.A. 43:21-5(a). . . . [H]e cannot claim to be the sort of 'involuntarily unemployed' individual that the Unemployment Compensation Act is designed to protect.

[Id. at 377.]

The Board of Review affirmed the decision of the Appeal Tribunal. This determination gave rise to Hunt's first appeal.

Hunt's second appeal arose from his second unsuccessful claim for benefits. While Hunt was suspended from his job with the Township, and while his first unemployment appeal was pending, he injured his finger at his home and became temporarily unable to work. He applied for disability benefits during unemployment (DDU). This claim was likewise denied by the Deputy, based on Hunt's earlier disqualification for unemployment benefits:

To be eligible for disability during unemployment benefits (DDU), you must meet all requirements of the unemployment compensation act except for the ability to work. One of these requirements is that separation from employment occurs for good cause attributable to the work. Your separation is not directly connected with the work. The unemployment insurance office determined that you left your job voluntarily and issued a disqualification that is still in effect. Although you are disabled, no DDU benefits can be paid to you.

The Appeal Tribunal affirmed the denial in a decision mailed to Hunt on November 17, 2004. That decision advised Hunt that any appeal had to be filed within ten days. Hunt did not file an appeal with the Board of Review until December 22, 2004, well beyond the ten-day time limit. His appeal letter explained the reason for the late filing:

Sorry about the tardiness of this appeal. I was in Maine and received the letter when I returned.

He did not indicate the date on which he had returned from Maine. On February 3, 2005, the Board dismissed his appeal because it was untimely and Hunt had not shown good cause for the late filing.

II

In appealing the denial of his first claim for benefits, Hunt acknowledges the rule set forth in Yardville Supply Company v. Bd. of Review, supra, that an employee who becomes unemployed after losing his prerequisite driver's license due to a DWI conviction, is disqualified from receiving unemployment benefits. Yardville Supply Co., supra, 114 N.J. at 375. He contends that this rule should not apply to him for several reasons, all of which we find to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

We find no merit in Hunt's claim that the Township's decision to first demote him to a laborer position, and then to suspend him, constituted "double jeopardy." This constitutional concept applies to criminal cases and is not relevant to his unemployment benefit claim.

Hunt also claims that he was treated more harshly than another employee who lost his driver's license in the "mid 1980's." This argument is unavailing for two reasons. First, Hunt admitted at his unemployment hearing that the current union contract requires all laborers to have a valid driver's license. Second, the unemployment hearing was not the proper forum in which to challenge the level of discipline the employer chose to impose. Hunt had the opportunity to raise the "equal treatment" issue, as well as the "double jeopardy" argument, in a union grievance arbitration. The arbitrator rejected both contentions and upheld the suspension.

Finally, in the conclusion of his brief, Hunt contends that his termination was a reprisal for filing a worker's compensation claim and for opposing "condemnation of private land without a purpose." We will not address these issues because he did not present those arguments to the Appeals Tribunal or to the Board. We affirm the Board's decision denying unemployment benefits.

Turning to Hunt's second appeal, the only issue properly before us is whether the Board correctly dismissed Hunt's administrative appeal as untimely. Hunt's appellate brief does not address the timeliness issue. We conclude, as did the Board, that his appeal was untimely, because it was not filed within the ten-day time limit set forth in N.J.S.A. 43:21-6(c). Hunt's letter, by itself, was not sufficient to establish good cause for the untimely filing. See Rivera v. Bd. of Review, 127 N.J. 578 (1992). However, we also note that the Board might have, but did not, give him a further opportunity to establish good cause for the untimely filing, by asking him to state the date on which he returned from Maine and received the Appeal Tribunal's decision. Accordingly, to ensure a complete record, we will also address the merits of his underlying DDU claim. We conclude, as did the Appeal Tribunal, that his application for DDU benefits was foreclosed by the Board's earlier, correct decision denying his unemployment benefit claim.

Affirmed.

 

According to Hunt, this was his third alcohol-related license suspension, the previous suspensions having occurred in 1979 and 1993.

Hunt, a union shop steward, conceded that the collective bargaining agreement required both crew leaders and laborers to possess a valid driver's license and CDL, as mandated by State law. He also conceded that all current DPW employees in fact had valid licenses. His union grievance concerning his suspension was denied.

(continued)

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A-3544-04T2

 

August 8, 2006