ATLANTIC FREIGHT SYSTEMS, INC. VS. BOARD OF REVIEW,(BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1942-15T4
ATLANTIC FREIGHT SYSTEMS,
INC.,
Appellant,
v.
BOARD OF REVIEW and
NICHOLAS V. MARTINEZ,
Respondents.
_______________________________
Submitted July 18, 2017 – Decided October 30, 2017
Before Judges Ostrer and Leone.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
043-947.
Kenneth A. Olsen, attorney for appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Adam K. Phelps, Deputy
Attorney General, on the brief).
Respondent Nicholas V. Martinez has not filed
a brief.
PER CURIAM
The substantive issue in this unemployment compensation
appeal is whether Nicholas V. Martinez quit his job as a truck
driver for Atlantic Freight Systems, Inc., or whether Atlantic
fired him. The Appeal Tribunal believed Atlantic's
representatives, who said he quit. The Board of Review reversed,
after crediting Martinez, who said he was fired in retaliation for
filing a wage and hour complaint against his employer. The Board
relied on various documentary records that it found corroborated
Martinez's version.
The Board is empowered to review the Tribunal's decision de
novo, Messick v. Bd. of Review, 420 N.J. Super. 321, 330 (App.
Div. 2011), and we defer to the Board's decision unless it is
arbitrary, capricious, or unreasonable, or is unsupported by
substantial credible evidence. Brady v. Bd. of Review, 152 N.J.
197, 210 (1997). However, we decline to decide that issue on the
record before us, because of a procedural issue: Atlantic claims
it did not receive notice of Martinez's appeal to the Board, until
the Board ruled against it. Atlantic's counsel then wrote to the
Board, asking it to reopen the record, to consider its arguments
and various supporting materials. However, the Board took no
further action.
Fundamental to due process is notice and an opportunity to
be heard. Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992). On
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appeal to us, the Board does not present any evidence that Atlantic
actually received notice, nor does it defend its evident refusal
to consider Atlantic's post-decision submission.
We therefore vacate the Board's decision and remand for
consideration of Atlantic's opposition to the appeal. We do not
retain jurisdiction.
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