FRANK W. HUTCHINSON v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1580-10T4

FRANK W. HUTCHINSON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND WORKFORCE DEVELOPMENT,

and ELITE TRANSPORTATION OF NEW

JERSEY, INC.,

Respondents.

___________________________________

November 9, 2011

Submitted October 17, 2011 - Decided

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 271,225.

Frank W. Hutchinson, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jonathan J. Greenberg, Deputy Attorney General, on the brief).

Respondent Elite Transportation of New Jersey, Inc. has not filed a brief.

PER CURIAM

Frank W. Hutchinson ("claimant") appeals the Board of Review's decision of October 6, 2010, which upheld the Appeal Tribunal's denial of his claim for unemployment benefits. We reverse.

Claimant was the sole witness who testified in the hearing before the appeals examiner. At the pertinent time, claimant was employed as a driver by co-respondent, Elite Transportation of New Jersey, Inc. ("Elite"). According to his testimony, the company vehicle that he was driving for Elite broke down on the road at about 11:25 a.m. on the morning of January 6, 2010. The same vehicle had broken down two days earlier. According to claimant, the outdoor temperature on January 6 was only approximately twenty-one degrees.

Because the vehicle's engine would not restart, claimant telephoned the company and reported the breakdown to the company's dispatcher. He waited in the cold for emergency aid, but no one arrived. After about twenty minutes, claimant called the company again and spoke with its owner, Vonda.1 According to claimant, Vonda initially asked him to remain with the vehicle. Claimant expressed reluctance to do so because he was cold, noting that he had to wait over an hour-and-a-half for a tow truck to arrive two days earlier.

Vonda instructed claimant to put the keys to the vehicle over the sun visor, lock the vehicle, and "do what you gotta do." Claimant waited at the scene until about 12:20 p.m., when he called the office again because no tow truck had arrived. He spoke with Vonda a second time, and the two of them exchanged angry words. She did not ask claimant to come to the office or call in for another assignment.

Consequently, claimant took a train home. He did not return to the office that day, nor did he receive any call from the company.

The following day, January 7, claimant called Vonda to ascertain his work status. Vonda told him that she would have somebody call him. However, according to claimant, no one did.

These circumstances led claimant to perceive that Elite no longer wanted or needed his services. Claimant was aware that other drivers had not been called back to work in similar situations. No one from the company contacted him, and therefore he stayed home during the next several days.

Later that week, claimant returned to the office to pick up his paycheck. No one at the office spoke to him on that occasion about returning to work, nor did anyone offer him another assignment.

Claimant subsequently filed a claim for unemployment benefits, which the Appeal Tribunal denied after the hearing. In her written decision, the hearing examiner exclusively faulted claimant for the non-resumption of his employment. The examiner determined that claimant should have taken more steps and "exhauste[ed] all opportunities" concerning his work status. The examiner concluded that claimant left work voluntarily without good cause attributable to the work, and therefore was ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-5(a). The Board of Review agreed with that finding.

Although we recognize that final decisions of the Board of Review are ordinarily entitled to considerable deference on appeal, see Brady v. Bd. of Review, 152 N.J. 197, 210 (1997), the situation in this case is not one in which such deference is warranted. A fair reading of claimant's unrefuted testimony shows that he did not stop working without good cause attributable to the work itself. The event that precipitated claimant's departure, i.e., the breakdown of the company vehicle that he had been driving, was directly "attributable to such work." N.J.S.A. 43:21-5(a). Claimant did not leave his post for a personal reason. Cf. White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977). It was not his fault that the company vehicle became inoperable for the second time in three days.

We differ with the hearing examiner that the lapse in communication between claimant and his employer in the ensuing days was entirely his responsibility. Claimant worked as a driver, and there is no indication in the record that he could have been usefully assigned other tasks in his employer's office while his vehicle was out of service. There is also no indication that the company had alternative driving assignments ready for claimant, or that he would have refused them if they were offered.

According to claimant's sworn testimony2, when he called in on the day after the second breakdown, his employer advised him that someone would call him. No one did. The ambiguity of the situation was as much the employer's fault as it was claimant's. Although we agree that claimant could have done more to pursue a clarification of his status, we are unpersuaded that he must forfeit eligibility for benefits because he was not more aggressive in following up with his employer.

In sum, the Board's decision is in error because the record does not show that claimant left work without good cause attributable to his employment. N.J.S.A. 43:21-5(a).

Reversed.

1 The record does not divulge the owner's last name. As noted, neither she nor any other witness testified for the company.

2 We note the examiner did not find claimant's testimony recounting the events incredible, but instead characterized his behavior as "illogical" and "unreasonable."