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Conlan v. Board of Review

June 28, 2007

THOMAS CONLAN, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND NEW PENN MOTOR EXPRESS, INC., RESPONDENTS.



On appeal from Board of Review, Department of Labor, BR 98,881.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 5, 2007

Before Judges Lisa and Holston, Jr.

Appellant, Thomas Conlan, a five year truck driver with respondent, New Penn Motor Express, Inc. (Penn Motor), appeals the decision of the Board of Review (Board) entered March 22, 2006, affirming the January 26, 2006 decision of the Appeal Tribunal. We affirm.

The Appeal Tribunal found, pursuant to N.J.A.C. 12:17-9.10, that appellant without good cause was absent from work for over five consecutive work days, failed to notify the employer of the reasons for his absences, and was considered to have abandoned the job. Appellant was, therefore, disqualified for benefits under N.J.S.A. 43:21-5(a), as of November 6, 2005, because "he left work voluntarily without good cause attributable to [his] work."

Appellant was initially found eligible for benefits from November 13, 2005. Respondent appealed. As a result, appellant was given notice that he was required to participate in an Appeal Tribunal factfinding telephonic interview to determine his eligibility for benefits. Notice was mailed January 12, 2006 informing appellant of a telephone hearing on January 24, 2006 on the issues of his voluntarily leaving and discharge for misconduct. However, appellant did not participate in the hearing. Nor did he request a postponement.

Carmine Nesta, the employer representative, testified that by the end of October 2005, appellant had used up his three weeks vacation, had been absent from work for more than seven days without calling the employer, and, most significantly, had spoken by telephone with his supervisor to whom he stated he had built a home and was going to be living permanently in Tennessee. Appellant provided the Tennessee mailing address where his paycheck should be sent. Thereafter, by letter dated November 9, 2005, the employer terminated appellant "for failure to report to work since 10/31/05." The termination letter was sent to the Tennessee address provided by appellant.

The Appeal Tribunal found that appellant worked as a truck driver for New Penn from September 12, 2000, through November 9, 2005, "when he was separated from the work." He called out sick on October 18 and 19, 2005, remained out on a scheduled vacation day on October 20, 2005, and again called out sick on October 21, 2005. Through his shop steward, appellant requested that his vacation pay be forwarded to a post-office box in Tennessee. Appellant neither contacted his employer nor did he report to work on October 31, or on November 1, 2, 3, 4, 7 and 8, 2005. Consequently, by letter dated November 9, 2005, New Penn notified him that his name was being removed from the company list, i.e., he was terminated effective November 9, 2005, "for failure to report to work since 10/31/05."

The Appeal Tribunal concluded that appellant abandoned his job when he failed to "report to work or notify the employer of his absences for over five (5) days and is considered to have abandoned the job." Because he left his job voluntarily without good cause attributable to the work, appellant was disqualified for benefits as of November 6, 2005, the beginning of the week in which he abandoned his job.

On February 1, 2006, appellant appealed the Appeal Tribunal's decision to the Board. On March 22, 2006, the Board affirmed the decision. The Board noted that appellant had the opportunity to appear at the hearing but failed to show good cause for not appearing or request an adjournment. On or about May 3, 2006, appellant filed a Notice of Appeal with this court.

Appellant presents the following arguments for our consideration:

POINT I.

PLAINTIFF WAS NEVER PROVIDED WITH AN OPPORTUNITY TO BE HEARD AT ...


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