BARRY W. KLECZ v. BOARD OF REVIEW DEPARTMENT OF LABOR AND HOMIAK TRANSPORT, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5092-08T35092-08T3

BARRY W. KLECZ,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR AND

HOMIAK TRANSPORT, INC.,

Respondents.

____________________________

 

Submitted: April 14, 2010 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Board of Review, Department of Labor, Docket No. 203,490.

Brian McEwing, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent State of New Jersey (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Homiak Transport, Inc., has not filed a brief.

PER CURIAM

Claimant Barry Klecz appeals from the final determination of the Board of Review (Board) disqualifying him for unemployment benefits based on the finding he voluntarily left his employment at Homiak Transport, Inc. (Homiak) without good cause attributable to the work. N.J.S.A. 43:21-5(a). We reverse and remand.

The record reveals that Klecz was employed as a truck driver from June 23, 2002 through August 20, 2008. Klecz contends he left work because he was not allowed the ten-hour rest period after a fourteen-hour work day mandated by the Department of Transportation (DOT), before having to start his next assignment. See 49 C.F.R. 395.3(a)(2) (2010). Claimant testified he arrived at the employer's yard in Vineland, New Jersey at 4:30 p.m. on Wednesday, August 20, 2008, after traveling from Pique, Ohio. Despite having made numerous calls to his supervisor to find out his assignment for the next day, his calls were not returned and claimant did not find out his assignment until he returned to the yard. He was then informed that the first load for the next day had to be delivered by 7:00 a.m. to his employer's client in North Kingstown, Rhode Island. Claimant testified that he still had to refuel his truck and do all his paperwork. Thus with his ten-hour rest, he did not anticipate he would be able to leave the next day until about 5:00 a.m., which, with northern New Jersey and New York traffic, would cause him not to arrive in Rhode Island until about l0:00 to 11:00 a.m. Claimant was concerned that he would not be able to get his work done; he would then have to continue working into Friday, when he had several scheduled stops between Massachusetts and Maine, and then come back and do another stop and pickup, which would carry into Saturday for which he would not be paid. Claimant essentially refused to take the load because he did not have reasonable hours to complete the task and was informed by his supervisor to "clean out" his truck.

Claimant's supervisor Ray Cronk testified that claimant "was told to take his [ten-hour break] mandated by the [DOT] then leave on his load." He further explained that arriving at the yard in Vineland at 4:30 p.m., claimant "could have left the yard at 2:30 [a.m.]" the following day, which "would have roughly put him on time or a half an hour late for his first stop at 7:00 a.m. in Rhode Island."

The Claims Examiner concluded that claimant was not disqualified for unemployment benefits, finding, in pertinent part:

The claimant arrived at the employer's yard at 4:30 pm. . . .

The first load for the next day's delivery had to be delivered by 7 am to the employer's client . . . [in] North Kingstown, Rhode Island[]. MapQuest estimated time to drive from North Kingstown, Rhode Island to Vineland, New Jersey is five hours and nineteen minutes.

. . . .

In this case, the employer admitted that the [DOT] mandate[s] that the employees must have ten hours to rest before getting back on the road. MapQuest estimated time to drive from North Kingstown, Rhode Island to Vineland, New Jersey is five hours and nineteen minutes. The claimant would have to leave Vineland, New Jersey at l:4l am.

The claimant did not have the ten hours the [DOT] mandated for Drivers to have prior to getting back on the road. This was good cause attributable to the work. Therefore, no disqualification applies under N.J.S.A. 43:21-5(a), as claimant did not leave the job voluntarily without good cause attributable to the work.

By letter of January 21, 2009, the employer appealed this determination. The letter contained unsworn statements, including identifying the dispatcher as the person who told claimant to take his mandated ten hours off before leaving for the Rhode Island assignment, supplementing Cronk's testimony to refute that he did not return claimant's calls during the day on August 20 and that he told claimant to take his mandated leave and, for the first time, referencing that the Dock Supervisor was a witness to the conversation.

The Board reversed, specifically finding that claimant "was told to take his mandatory ten hours rest prior to leaving the yard" for the new load to be delivered to Rhode Island, which would get him to that assignment "on time or one half hour late." The Board provided the following conclusory statement:

We are compelled to rewrite the Findings of Fact as those of the Appeal Tribunal do not accurately reflect the record and include items that are unsubstantiated by testimony from either party. Additionally, the Appeal Tribunal based its opinion on those items.

We are satisfied that the claimant was told to take his mandatory ten hours of rest prior to leaving to take the new load and chose to resign instead of doing so. The claimant's contention that he could not take the new load and arrive on time without violating [DOT] rules is rejected as he could have followed the mandate as instructed by the employer and simply have been late to his destination. The claimant voluntarily left the employment without good cause attributable to work. The claimant is disqualified for benefits as of August l7, 2008, in accordance with N.J.S.A. 43:21-5(a).

The Board provided no explanation for its rejection of the examiner's factual findings and did not even identify those facts or findings that were "unsubstantiated" by the record upon which it believed the examiner erroneously relied. Since the Board omitted any reference to MapQuest in its "rewriting" of the facts, we surmise that may have been one of the factual findings the Board found objectionable. We are not troubled by the examiner's use of MapQuest to determine the approximate driving time of the trip from Vineland, New Jersey to Kingstown, Rhode Island. First of all, the examiner asked Cronk whether the internet (presumably MapQuest or a similar site) would substantiate his testimony as to the number of hours it would take to travel from Pique to Vineland and Cronk testified he believed it would corroborate his estimated time. See Weston v. State, 60 N.J. 36, 5l (1972) (holding that "[h]earsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony"). Secondly, the MapQuest mileage calculations are so universally accepted that it constitutes a "proposition of generalized knowledge" of which an agency or court can take judicial notice. N.J.R.E. 201(b). Additionally, considering that Cronk's estimation of the travel time was about four and a half to five hours (if claimant left at 2:30 a.m., he would arrive on time or a half an hour late) and claimant's estimation was about five to six hours with traffic (leaving at 5:00 a.m., he would arrive between l0:00 and ll:00 a.m.), MapQuest's estimate of five hours and nineteen minutes was reasonable. Thus, the Board was compelled to provide some explanation as to why it found both MapQuest's and claimant's estimates unrealistic and accepted Cronk's estimate in total. This is particularly so in view of the fact that it is expressly contrary to the examiner's conclusion that claimant would not have the requisite ten-hour rest before getting back on the road if he were to take the Rhode Island assignment.

That leads us to our next concern, which is the fact that the Board relied on new, unsworn statements submitted by the employer to which claimant did not have an opportunity to respond. Due to the Board's paucity of findings and explanation, we have no idea whether, and to what extent, the Board relied on the employer's post-hearing submissions in reversing the examiner and reaching its final determination. "The Appeal Tribunal is the proper forum for the trial of facts," Marczi v. Board of Review, 63 N.J. Super. 75, 85 (App. Div. l960), and "as to matters arising subsequent to the filing of the original claim, all of the parties must be afforded notice and opportunity to be heard and to present evidence relating to such new matters." Charles Headwear, Inc. v. Board of Review, 11 N.J. Super. 32l, 329 (App. Div. l951).

Accordingly, to afford claimant due process, we remand this matter to the Board to conduct a hearing in which claimant will have an opportunity to be heard. See Rivera v. Bd. of Review, 127 N.J. 578, 584 (1992) (holding that "state statutes providing for the payment of unemployment compensation benefits create in the claimants for those benefits property interests protected by due process."). The Board should make specific credibility assessments and findings as to whether claimant was told to take his ten-hour break. The Board should also explore whether and for how long claimant would have been on duty performing functions such as refueling his vehicle, completing his travel log, or performing other job-related services after returning to his employer's yard, and make express findings as to when claimant's rest period would have commenced for purposes of determining whether he would have had the requisite ten hours before going back on the road to Rhode Island.

Reversed and remanded. We do not retain jurisdiction.

 

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A-5092-08T3

May 10, 2010