Gonzalez

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1634-06T21634-06T2

DANIEL GONZALEZ,

Appellant,

BOARD OF REVIEW,

and GOODWAY CAR WASH, INC.,

Respondents.

_____________________________________

Submitted January 7, 2008 - Decided January 31, 2008

Before Judges Parrillo and Sabatino.

On appeal from a Final Decision of the Board of Review, Department of Labor, 26,961.

Keefe Bartels, attorneys for appellant (Richard C. Sciria, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent Board of Review (Patrick DeAlmeida, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

No brief was filed on behalf of respondent Goodway Car Wash, Inc.

PER CURIAM

Claimant, Daniel Gonzalez, appeals a final agency decision of the Board of Review ("the Board") issued on October 6, 2006. The Board's decision upheld an Appeals Tribunal's ruling that disqualified Gonzalez from receiving six weeks of unemployment benefits, on the grounds that Gonzalez had been discharged from his employment with Goodway Car Wash, Inc. ("Goodway") for misconduct due to unreported absences. N.J.S.A. 43:21-5(b). We affirm.

At the times relevant to this matter, Michael Buonopane, the owner of Goodway, operated several car wash and oil change establishments in New Jersey, including a car wash on Route 9 in Howell Township. Gonzalez worked for Goodway from 1999 through January 2004. At the time he left his employment with Goodway, Gonzalez was the location manager of the Route 9 facility.

In 2003 Gonzalez suffered a work-related injury. He applied for workers' compensation, but was found ineligible for such benefits when it was discovered that Goodway had failed to withhold Social Security and other required payroll deductions from Gonzalez's paychecks. Gonzalez complained to Goodway's management, asserting that he would leave the company if the payroll deduction problem was not rectified. Gonzalez was also dissatisfied with Goodway's handling of his health insurance benefits. When Goodway failed to take corrective action, Gonzalez provided notice on January 7, 2004 to Goodway's human resource manager, Eric Laws, that he intended to resign in thirty days.

According to the testimony of Laws, presented by Goodway before the hearing examiner, Gonzalez failed to report to work on January 15, 2004 and again on January 18, 2004, without authorization. Laws testified that company policy required employees to notify him that they would be absent on a given day, even on days of inclement weather. Laws also noted that there would typically be other tasks for employees to perform when the weather was poor. Laws further stated that Gonzalez would have been paid for reporting to work, even if his supervisor decided to send him home early.

After Gonzalez failed to report or call in on January 15, Laws admonished him concerning his need to comply with this policy. According to Laws, he specifically advised Gonzalez that this was his "last chance." Despite this warning, Gonzalez again was absent without Laws's authorization on January 18. Consequently, Laws advised Gonzalez the following day, January 19, that he was discharged.

Gonzalez presented a contrary version of his absences. He acknowledged that he did not work on January 15 because it had snowed. Although his testimony was inconsistent, Gonzalez ultimately asserted that he had tried to call Laws that day but that Laws did not answer his phone. With respect to January 18, Gonzalez stated that he did not work, again because of inclement weather. He claimed that he tried to reach Laws without success. However, Gonzalez did not document the calls at the hearing with corroborating telephone bills.

Gonzalez also offered testimony from the company cashier, who stated that, by her observations, he did not "continually show up late" for work. However, the cashier could not recall whether or not Gonzalez had ever failed to report on time. The cashier also did not testify about Gonzalez's specific absences of January 15 and 18.

Laws denied receiving any calls or messages from Gonzalez on the 15th or the 18th. The hearing examiner credited his testimony, recognizing its "consistency and forthright" nature. By comparison, the hearing examiner observed that Gonzalez "was contradictory in a number of instances in his testimony," including his account of the events of January 15. Given the hearing officer's credibility findings, the Appeal Tribunal concluded that Gonzalez had engaged in misconduct connected with his work due to his failures to report, and that Gonzalez consequently was disqualified from receiving unemployment benefits for the week of his unauthorized absences, and the five weeks immediately thereafter. See N.J.S.A. 43:21-5(b). As a separate item, the Appeal Tribunal concluded that the problems with Gonzalez's health benefits and payroll deductions were not severe enough to amount to good cause to resign, thereby disentitling Gonzalez to unemployment benefits even after the initial six-week disqualification period ran. See N.J.S.A. 43:21-5(a).

Upon reviewing this matter, the Board adopted the Appeal Tribunal's finding that Gonzalez's two unapproved absences warranted a six-week benefits disqualification under N.J.S.A. 43:21-5(b). However, the Board reversed the tribunal's determination that, under N.J.S.A. 43:21-5(a), Gonzalez lacked good cause to resign due to the company's payroll-related problems. The effect of the Board's decision was to delay for six weeks Gonzalez's receipt of the presumptive twenty-six weeks of maximum benefits. See N.J.A.C. 12:17-10.1(a); see also Smith v. Bd. of Review, 281 N.J. Super. 426, 433-34 (App. Div. 1995).

On appeal, Gonzalez argues that the Board's ruling is unfair, internally inconsistent, and contrary to the applicable statutes. He argues that the Board's determination under N.J.S.A. 43:21-5(a) that he had good cause to resign because of the company's payroll problems cannot be squared with its separate finding that his absenteeism warranted his discharge under N.J.S.A. 43:21-5(b). He also contends that his alleged violations of the company's absence policies, even if they occurred, were not serious enough to amount to "misconduct connected with the work" under N.J.S.A. 43:21-5(b). We disagree.

Although N.J.S.A. 43:21-5(b) does not define misconduct, we have held that the term embraces, among other things, "'a deliberate violation of the employer's rules,'" or conduct by an employee that bespeaks "'an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.'" Smith, supra, 281 N.J. Super. at 431 (quoting Beaunit Mills v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957)). A single act of insubordination may suffice. Ibid. Here, the fact-finder determined that Gonzalez, despite his contrary testimony, did not adhere to his employer's policies and speak with his supervisor when he failed to report to work on January 15 and January 18. His supervisor warned him during the interval between the two absences that this would be his "last chance." The supervisor testified that even on days of inclement weather there are still tasks that the employer would expect to be performed. Although the matter is not free from doubt, there is substantial credible evidence in the record to support the agency's findings of misconduct. The findings have not been demonstrated to be arbitrary, capricious or contrary to the statute.

We discern no irreconcilable conflict between the Board's determination of misconduct arising out of Gonzalez's failures to report on January 15 and 18, and its separate determination that Gonzalez had a valid reason to resign because of the company's mishandling of its payroll. The two determinations can be easily harmonized. Once Gonzalez provided his employer, for good reason, with thirty days notice of his resignation, the company had a reasonable basis to expect his attendance, his performance of duties, and his adherence to company policies until his departure date. After all, Gonzalez was still being paid. His complaints about his benefits, however justified, did not exempt him from reporting to work and obtaining authorization for absences, so long as he remained on the payroll.

Affirmed.

It is undisputed that Gonzalez eventually reported the situation to the Internal Revenue Service ("IRS"). He later learned from the IRS that Buonopane had been indicted for illegally retaining employee withholding taxes in several of the businesses that he owned, including Goodway. Although it is not dispositive to our analysis, we note that Buonopane pled guilty to certain counts of the indictment in 2005.

The employer, Goodway, does not appeal the Board's determination on the payroll-related issues.

We understand that Gonzalez filed a civil action in the Law Division, seeking damages under the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14. Nothing in our opinion is intended to affect that litigation against Gonzalez's former employer.

(continued)

A-1634-06T2

January 31, 2008