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Lawton v. Board of Review


June 4, 2007


On appeal from the Board of Review, Department of Labor, 95,505.

Per curiam.


Submitted May 2, 2007

Before Judges Cuff and Fuentes.

Petitioner James L. Lawton appeals from the temporary denial of unemployment compensation benefits. The Board determined that, pursuant to N.J.S.A. 43:21-5(b), petitioner was disqualified for benefits from October 23, 2005 trough December 3, 2005, because he was discharged by his employer for insubordination and misconduct.

Petitioner argues that the Board's findings were not supported by the record. He further argues that he was denied procedural due process when the Board permitted the employer's witnesses to testify via telephone. We reject these arguments and affirm.

Petitioner was employed by CVS as stock handler from September 8, 1993, to October 24, 2005. As part of his trining at CVS, petitioner signed a document acknowledging receipt of a the standards of behavior governing the conduct and performance for employees. Through his twelve-year tenure at CVS, petitioner rose to earn the maximum salary assigned to his position.

It is undisputed that all of the testimonial evidence received in this case was presented telephonically. At a hearing conducted before the Appeals Tribunal, CVS Human Resource Specialist Robin Jackson testified that petitioner was suspended on October 24, 2005 for insubordination after he refused to follow the instructions of his supervisor to "move pallets" in the warehouse and "to cut pallets."

Supervisor Evelyn Anaya testified that at the time of the incident, petitioner did not give an explanation for his conduct. She later learned that petitioner refused to cut the pallets because he maintained that the pallets were not in a location which best suited him. Thus, the issues of the location of the pallets, and whether they were stored where petitioner had worked with them at other times, were hotly contested matters before the Appeals Tribunal, and ultimately before the Board itself.

The final witness presented by CVS was Aleshia Mason, the supervisor who witnessed petitioner's refusal to follow Anaya's instructions. As with all of the witnesses who testified, she was cross-examined on this issue, as well as all of the issues relating to petitioner's conduct on the date in question.

Petitioner testified that he brought his grievance with Anaya to manager Rich Fanitate. After listening to both sides, Fanitate directed him to return to work and follow his supervisor's instructions. According to petitioner, he followed Fanitate's direction, and returned to his work station, accompanied by Fanitate and Anaya. Petitioner testified that when they arrived, the pallets were not in the usual location. This triggered a "discussion" between petitioner and Fanitate, in the course of which, petitioner claims that Fanitate called him a "player." He immediately expressed his objection to the being called a "player," and insisted that the pallets be placed at his work station, as a condition of complying with Anaya's instructions to "cut the pallets."

Against these facts, the Board found that petitioner's actions amounted to insubordination. The scope of our review of a final decision reached by a State administrative agency is limited. An administrative agency's action is presumed to be valid and reasonable. In re Amendment to Recreation and Open Space Inventory, 353 N.J. Super. 310, 327 (App. Div. 2002). We will reverse the decision "'only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

In this light, we discern no legal basis to set aside the Board's decision. Petitioner's argument challenging the receipt of testimonial evidence via telephone is equally unavailing. Telephone hearings are a well-established method of conducting these type of adjudicatory proceedings. N.J.A.C. 1:12-14.5(b) authorizes

The Board of Review or Appeal Tribunal [to] schedule telephone hearings:

1. When it appears from the record that a party or necessary witness is located more than 50 miles from the location from which the Board of Review or Appeal Tribunal will conduct the hearing;

2. When a party or witness cannot appear in person because of a physical, medical or other compelling reason;

3. For good cause shown on a case-by-case basis; or

4. For the administrative expedience of the Board of Review or Appeal Tribunal. [(Emphasis added.)]

The regulation further vests the Board with the discretion to sustain or deny a party's objection to a telephone hearing. N.J.A.C. 1:12-14.5(h). In the exercise of that discretion, the regulation directs the Board to consider the following factors:

1. That the objecting party's intent is to purposely inconvenience the other party or delay the proceeding;

2. That a party or witness is more than 50 miles away from the hearing site;

3. That a person is unable to appear in person because of physical, medical or other compelling reason; or

4. That good cause exists to order a telephone hearing notwithstanding the party's objection. [N.J.A.C. 1:12-14.5(e).]

Here, the Board concluded that administrative convenience outweighed petitioner's request for an in-person hearing. Given this record, we have no basis on which to conclude that the Board mistakenly exercised its discretion in making this determination. We are satisfied that the hearing conducted here comported with the Constitutionally required procedural due process. Garzon v. Bd. of Review, 370 N.J. Super. 1, 9 (App. Div. 2004).



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