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Bailey v. Board of Review

April 03, 2001

ANTHONY K. BAILEY, PETITIONER-APPELLANT,
v.
BOARD OF REVIEW AND KINKO'S COPY CENTER, RESPONDENTS-RESPONDENTS.



On appeal from the Board of Review, Department of Labor, 99-B-04331-000-XO.

Before Judges Baime and Carchman.

The opinion of the court was delivered by: Carchman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2001

Appellant Anthony Bailey appeals from a final determination of the Board of Review (the Board) denying his claim for unemployment benefits. The Board affirmed a determination of the Appeal Tribunal concluding that appellant was discharged for gross misconduct, N.J.S.A. 43:21-5(b), as he committed a theft of $7,500 from the employer over a two-year period. While we have significant questions as to the merits of appellant's appeal, because of the failure of the Appeals Tribunal and Board to address the primary issues in dispute, we are constrained to remand this matter to the Board for further proceedings.

We briefly set forth the relevant facts. Appellant commenced his employment at Kinko's as a copy consultant in January 1997. In May 1999, Kinko's investigated "an unusually high number of low sales and no sales per frequency of sales transactions" which were observed on appellant's cash register. The investigation, which included two controlled purchases at appellant's register, revealed that one of the transactions was not recorded as a sale.

When confronted, appellant gave a statement admitting his conduct and said:

I find solace in being confronted about . . . some of the unethical and totally improper "methods I employed" at store 1216. These include underrings, sale erase, copy card misuse and I'm sorry to say on occasion pocketing cash.

My testimony is that I would like the opportunity to redeem myself in my work at Kinko's and that I will never ever do anything or things of this sort again nor knowingly disregard any company guideline or policy or knowingly allow anyone else [sic].

Where I'm not certain of the exact amount but basing it on the frequency or infrequency of my actions times this (my store's) average sales I'm overwhelmed by what the reality of the numbers could be. I could go into my loss of countenance and treatment in this branch and what contributing factors they may have played in my attitude at the time of my bad decisions but ultimately I know it's just the "I" that's "me" [sic] has to be responsible.

Again I'm sorry. [(emphasis and footnote omitted).]

He added in a footnote to his statement that he estimated he had taken approximately $7,500 over a two year period. The next day, he recanted and advised that he had written the earlier statement to avoid having the case become a police matter and due to his desire to "get out of Kinko's without a scene" and "speak to [his] attorney." Despite his aim, defendant was thereafter arrested and charged with theft, N.J.S.A. 2C:20-3a, which, because the amount charged exceeded $500, was a crime of the third-degree, N.J.S.A. 2C:20-2b(2). The criminal matter was referred by the Mercer County Prosecutor's Office to Princeton Borough Municipal Court, where it was ultimately dismissed.

At the hearing before the Appeal Tribunal, appellant disputed the employer's version of events and denied taking any money from the store. He claimed that although he wrote out and signed the statement, it was under duress. He observed that he had a criminal record and "so one of the things I did not want was a police scene." He further suggested that he was advised that if he signed the statement, a recommendation would be made that he keep his job. When inquiry was made as to whether restitution had been made, appellant responded, "not yet."

On appeal, appellant's primary claim was that his statement was the result of duress. Although he raised issues as to sufficiency of the evidence and a general denial of culpability, the ...


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