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Conlan v. Board of Review


June 28, 2007


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

Per curiam.


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:






Appellant contends he was never given the opportunity to participate in the telephone hearing and present his position. He claims he was not notified of the hearing. Appellant contends he moved out of State and that he received the notice of the hearing by forwarded mail past the date of the telephone hearing. Therefore, appellant asserts he was denied due process.

In the unemployment benefits context, due process demands that a claimant be provided with adequate notice of a decision denying his benefits and an opportunity to request a hearing before that decision becomes final. Rivera v. Board of Review, 127 N.J. 578, 583 (1992). The claimant "must be given a real chance to present his or her side of the case before a government decision becomes final." Ibid.

We are satisfied that notice of the telephone hearing was mailed directly to appellant's Tennessee address. The Division was aware of appellant's Tennessee address as early as November 2005 and communicated with him from that time by mailing various documents directly to P.O. Box 547, Baxter, TN 38540, the address appellant provided. Although appellant's address is not listed on the notice of hearing, which was mailed January 12, 2006, we are satisfied that appellant was given the required notice and that it was mailed directly to him to the Tennessee address he had provided.

Significantly, in appellant's letter of appeal to the Board, appellant does not allege that he failed to receive the notice but that he did not receive the notice in sufficient time to participate in the hearing on January 24, 2006. Thus, we are convinced appellant was not denied due process but simply failed to call on the day of the hearing as required by the notice or to request a postponement prior to the scheduled hearing date.


Appellant contends that he is entitled to benefits because he was "informed by his Union's shop steward that he was scheduled to return to work on November 17, 2005." Therefore, he claims he was wrongfully terminated as of November 9, 2005. Appellant, in a letter dated December 12, 2005, addressed to New Jersey Division of Unemployment, wrote:

I was in the process of moving my family out of State and took vacation time. The shop steward stated that I would need to return to work on November 17, 2005. I had every intention of doing this and I rec'd a certified letter on 11/9/05 (dated) stating I was terminated. I was very upset by this as I even had living arrangements made for when I returned. I also had 5 sick days left that they paid me for on 11/9/05. I have been without income now except for the 5 sick days since 10/24/05. The shop steward Gary Mills can verify this.

The Unemployment Compensation Law provides that a claimant is disqualified for benefits:

For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment . . . and has earned . . . at least six times the individual's weekly benefit rate. . . . [N.J.S.A. 43:21-5(a).]

An employee who leaves work voluntarily has the burden of proving that he did so for good cause attributable to the work. Brady v. Board of Review, 152 N.J. 197, 218 (1997); Morgan v. Board of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). In Domenico v. Board of Review, 192 N.J. Super. 284, 287 (App. Div. 1983), we stated that "[w]hile the statute does not define 'good cause,' our courts have construed the statute to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" (quoting Condo v. Board of Review, 158 N.J. Super. 172, 174 (App. Div. 1978). Ultimately, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Id. at 288. We are satisfied appellant did not satisfy this responsibility and properly was found disqualified for benefits.

In a letter dated January 31, 2006, the shop steward wrote that he believed that "sick days [for appellant] should have kicked in 11/2 - 11/8" and that "7 consecutives day[s] without reporting for work should have been 11/17/05."*fn1 However, the shop steward's note does not indicate that he directed appellant to return to work on November 17, 2005. Additionally, Nesta testified at the telephonic hearing that the shop steward advised him only that appellant "was going to be on vacation" from October 24 through 28, 2005 and that appellant "moved to Tennessee."

Appellant asserts that respondent should have placed him on sick leave from November 2 through November 8, 2005, even though neither he nor the shop steward notified the employer that he was sick. Appellant's position appears to be that he was free to remain out of work without contacting his employer for another seven work days after November 8, 2005 before he could be terminated. Appellant's position is premised on a provision in the union contract, which gives the employer the right to terminate an employee after seven days of "no call, no show." Appellant asserts, therefore, that he was entitled to be "no call, no show" from October 31 through November 16, 2005, a total of thirteen days without incurring the risk of any adverse consequences, so long as he showed up for work on November 17, 2005. The record does not support appellant's argument and we reject it.

Under the administrative code, an employee who fails to report to work "for five or more consecutive work days" shall be "subject . . . to disqualification for benefits for voluntarily leaving work without good cause attributable to such work." N.J.A.C. 12:17-9.11(a). The employee will be found to be disqualified for benefits if he fails to show that he had good cause for not contacting his employer during his absence. Ibid. "Good cause" is defined as "any situation over which the claimant did not have control and which was so compelling as to prevent the employee from notifying the employer of the absence." Ibid.

Here, the record is devoid of evidence that appellant was prevented from contacting his employer while he was absent from work. His absence resulted from his decision to move to Tennessee. While he was in Tennessee, he was able to contact his employer had he chosen to do so, as is evidenced by his calling Nesta to ensure that his vacation pay was mailed to Tennessee.

Appellant additionally contends that he is entitled to benefits because he had "no intention of quitting his employment." He supports this contention by citing the Supreme Court's opinion in DeLorenzo v. Board of Review, 54 N.J. 361 (1969). In DeLorenzo, the Court affirmed the Board of Review's holding that "when an employee becomes ill and does those things reasonably calculated to protect the employment and, notwithstanding that she is not reinstated, there is no voluntary leaving of work." 54 N.J. at 364.

However, there is no evidence in the record to support a finding that appellant failed to report to work in October and November 2005 because he was ill. To the contrary, he admitted that he did not report to work because he "was in the process of moving my family to Tennessee." Moreover, appellant did not do "those things reasonably calculated to protect the employment." Ibid. Nesta testified appellant told him that he had no intention of returning to New Jersey. We are satisfied appellant was terminated because he was a "no call, no show" for seven consecutive days. Thus, he properly was held disqualified for benefits.

An appellate court will reverse a decision of an administrative agency only if it can be demonstrated that the decision "was arbitrary, capricious, or unreasonable." Mullarney v. Board of Review, 343 N.J. Super. 401, 406 (App. Div. 2001). We must accept all factual determinations if they "are supported by sufficient credible evidence" in the record. Ibid. We are satisfied that the decision of the Board was not arbitrary, capricious or unreasonable and is supported by substantial credible evidence in the record.


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