CLAUDIO TUNDO v. BOARD OF REVIEW, DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                              SUPERIOR COURT OF NEW JERSEY
                                              APPELLATE DIVISION
                                              DOCKET NO. A-0525-16T1

CLAUDIO TUNDO,

        Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR and BOROUGH OF
RINGWOOD,

     Respondents.
__________________________________

              Submitted January 10, 2018 – Decided January 30, 2018

              Before Judges Fuentes and Suter.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 087,369.

              Mark B. Frost & Associates, attorneys for
              appellant (Ryan M. Lockman, on the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent Board of Review
              (Melissa Dutton Schaffer, Assistant Attorney
              General, of counsel; Daniel Pierre, Deputy
              Attorney General, on the brief).

              Kaufman Semeraro & Leibman, LLP, attorneys for
              respondent Borough of Ringwood (Justin D.
              Santagata, on the brief).

PER CURIAM
     Claudio Tundo appeals from a final decision of the Department

of Labor and Workforce Development's Board of Review (Board) that

disqualified him from unemployment benefits under 
N.J.S.A. 43:21-

5(b) for severe misconduct.      We affirm the Board's decision.

                                    I

     We derive the factual background from the hearing before the

Appeals Examiner.

     Tundo was employed by the Borough of Ringwood as a laborer

from June 4, 2012 to February 26, 2016, when he was involuntarily

terminated from employment.      As a laborer, one of Tundo's duties

was to operate a snowplow in bad weather.       Ringwood contended that

Tundo demonstrated a pattern of excessive absenteeism particularly

during inclement weather.      The union contract allowed fifteen sick

leave days per year.    Tundo was absent from work twenty-six days

in 2013, and fifty-eight days in 2014.

     In 2014, Tundo received a written warning that he used sick

and personal time in excess of the union contract.       He was advised

future   violations    would     result   in    discipline,   including

"suspension and possible termination."         He then failed to report

for light duty and was docked. He received another written warning

in 2014 about excessive absenteeism.

     In January 2015, he received a written           warning for not

responding to a snow event after receiving advance notice.             In

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1 April 2015, he was suspended for four days when he inconsistently

explained the reason for his absence.       In May 2015,   he was

suspended for seven days for not reporting.     He received other

written warnings in August, September and December 2015, for his

use of sick leave days.   Tundo testified he did not receive these

written warnings, while Scott Heck, Ringwood's Borough Manager,

testified that he met with Tundo several times to discuss his

attendance and personally handed the warning memos to Tundo. Tundo

was advised he had to submit a doctor's note for any use of sick

time.

     Tundo called out sick on January 22 and 25, 2016, when there

was a large snow storm.    He did not provide a doctor's note as

required.   He received a fifteen-day suspension.

     On February 15, 2016, a holiday, Tundo was not one of two

employees who were on a "stand-by" list.    However, because of a

snow event, Heck testified all laborers were called in to work.

Tundo testified he was not called, but a record shows that Tundo

was called at 4:43 a.m., and declined to go into work.

     On February 16, 2016, Tundo testified he left for work about

75 minutes early but his four-wheel drive vehicle slid into a curb

near his house, and although there was no damage to his vehicle,

he called out because of the icy road conditions.



                                 3                         A-0525-16T1
      Tundo    was    involuntarily         terminated       from      employment     on

February     26,    2016.         The    grounds   for     termination       included:

"Insubordination,"          "Inability       to    Perform      Duties,"     "Chronic

Absenteeism," "Neglect of Duty," "Abuse of Sick Leave," "Conduct

Unbecoming a Public Employee," and "Other Sufficient Cause."

      Tundo applied for unemployment benefits.                     In April 2016, he

was notified by the Deputy Director of the Division of Unemployment

and   Disability     Insurance          (Deputy)   that    he    was    eligible    for

unemployment benefits.             Ringwood appealed the Deputy's decision

to the Appeal Tribunal.

      In   June    2016,    following       a   hearing,     the    Appeal   Tribunal

disqualified       Tundo    from    unemployment      benefits       under   
N.J.S.A.

43:21-5(b), finding "simple misconduct connected with the work"

based on his record of excessive absenteeism.                   The Appeal Tribunal

recounted Tundo's absences in January and February 2016, finding

the "submitted evidence reflects that there was a pattern of

behavior on the claimant's part in calling out during inclement

weather, which is when his job required him most."                      In June 2016,

the Deputy found Tundo was liable to refund $3942 in benefits

received.

      Both    Ringwood      and    Tundo    appealed      the   Appeal     Tribunal's

decision to the Board.         On August 22, 2016, the Board disqualified

Tundo from receiving unemployment benefits under 
N.J.S.A. 43:21-

                                            4                                  A-0525-16T1
5(b) because of severe misconduct connected with the work.                       The

Board agreed with the Appeal Tribunal "except that the claimant

has a two-year history of repeated absences after written warnings

and failed to show up for work when required."                 The Board found

Tundo's "pattern of refusal to comply with reasonable workplace

rules   is     malicious    and    deliberate       and     constitutes      severe

misconduct connected with the work."

      Tundo    appeals,    contending       the   Board's   finding    of    severe

misconduct was not supported by the record.                 He argues that the

employer did not show proof that he declined to work on February

15, 2016.     Furthermore, on February 16, 2016, he followed proper

procedure by calling in because the roads were too slippery.

                                       II

      Our review of an agency's decision is limited.                        "If the

Board's factual findings are supported 'by sufficient credible

evidence, courts are obliged to accept them.'"                 Brady v. Bd. of

Review, 
152 N.J. 197, 210 (1997) (quoting Self v. Bd. of Review,


91 N.J. 453, 459 (1982)). We will not intervene unless the Board's

decision is "arbitrary, capricious, or unreasonable."                  Ibid.

      A person is disqualified from unemployment benefits if he or

she   "has    been   suspended    or   discharged     for    severe    misconduct

connected with the work[.]"            
N.J.S.A. 43:21-5(b).           The statute

provides examples of severe misconduct which includes "repeated

                                        5                                   A-0525-16T1
lateness or absences after a written warning by an employer . . .

misuse of sick time [and] abuse of leave[.]"             Ibid; see N.J.A.C.

12:17-10.1(b) (setting forth the length of the disqualification

where a person is suspended or discharged for severe misconduct

connected to the work).

       Pursuant to regulation, severe misconduct is defined as "an

act which (1) constitutes 'simple misconduct,' as that term is

defined in this section; (2) is both deliberate and malicious; and

(3) is not 'gross misconduct.'"             N.J.A.C. 12:17-2.1.       In Silver

v. Bd. of Review, 
430 N.J. Super. 44, 55 (App. Div. 2013), we

construed severe misconduct based on repeated lateness or absences

after a written warning "as requiring acts done intentionally,

deliberately,    and      with    malice."         Further,    we    understood

"'intentional' and 'malicious' as used in the regulation to include

deliberate    disregard    of    the   employer's    rules    or    policies    or

deliberate disregard of the standards of behavior that the employer

has the right to expect of an employee."             Id. at 56.

       Given our standard of review, we have no basis to interfere

with    the   Board's     determination       to    disqualify      Tundo    from

unemployment benefits for severe misconduct connected to his work

based on his pattern of excessive absences. Tundo was given notice

verbally and in writing and served increasing longer periods of

suspension based on his chronic absences.             The evidence supports

                                        6                                A-0525-16T1
the Board's findings that he had a two-year pattern of absences,

calling out during inclement weather, received written warnings,

and failed to attend work. This record supported the Board's

conclusion that Tundo's chronic absenteeism was "malicious and

deliberate" because his services as a snow plow operator were

needed in inclement weather.

       This case is not similar to Parks v. Bd. of Review, 
405 N.J.

Super. 252 (App. Div. 2009), where we found all of the absences

were due to family emergencies.        The Board was entitled to infer

from    Tundo's    repeated   absences    that   he   was   deliberately

indifferent to his employer's policies.

       Affirmed.




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