NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 15, 2013
On appeal from Superior Court of New Jersey, General Equity Part, Middlesex County, Docket No. C-51-12.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for appellant (John J. Peirano, of counsel and on the brief; Elena Chkolnikova, on the brief).
Mets Schiro & McGovern, LLP, attorneys for respondent (Leonard C. Schiro, of counsel and on the brief; Alan R. Niedz, on the brief).
Before Judges Graves, Ashrafi, and Guadagno.
Mark Mather, an employee of the New Jersey Turnpike Authority (the Authority), was terminated from his position following a drunk-driving accident. Defendant Local 194, International Federation of Professional and Technical Engineers, AFL-CIO (the Union) filed a grievance on Mather's behalf. Following arbitration, the Authority was ordered to reinstate Mather. The Authority appeals from an April 20, 2012 Law Division order, which confirmed the arbitrator's decision. For the reasons that follow, we affirm.
Mather has been employed by the Authority as a toll electronic maintenance technician since January 12, 2004. The Authority provided Mather with a van for work-related and commuting purposes.
On April 24, 2010, Mather was scheduled to work from 6:00 a.m. to 2:00 p.m., and he had agreed to work an overtime shift from 2:00 p.m. to 10:00 p.m. While working the overtime shift, Mather left work without notifying anyone from the Authority. An E-Z Pass record confirms Mather exited the New Jersey Turnpike at interchange 15E at 6:59 p.m. in the direction of Harrison, New Jersey. At approximately 7:12 p.m., Mather struck two parked vehicles on Davis Avenue in Harrison. Police responded to the scene, and Mather subsequently failed a breathalyzer test, registering a blood alcohol content of .16%. Mather was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50.
The next day, Mather telephoned his supervisor and requested four hours of sick leave from 6:00 p.m. to 10:00 p.m. on April 24, 2010. Mather did not report the accident or the DWI charge in his phone call. On April 26, 2010, Mather telephoned the manager of his division, Brad Gilbert, and informed him of the incident. Mather explained that on the night of the accident, he became intoxicated while at a friend's house sometime after 6:00 p.m. Gilbert approved Mather's request for retroactive sick leave.
On May 5, 2010, the Authority issued a Notice of Disciplinary Action, charging Mather with "gross willful misconduct arising from a series of events on April 24, 2010." The notice specified that Mather violated the Authority's alcohol and drug use policy, misused an Authority vehicle, and violated the general rules for Authority personnel. Mather was suspended without pay pending the outcome of the charges.
In a memo to the Toll Collection Director dated May 6, 2010, Gilbert recommended that Mather's employment be terminated. Gilbert stated his reasons were as follows:
1. It is apparent that Mr. Mather had been drinking on the clock during his shift from 2:00 p.m. – ...