On appeal from the Board of Review, Department of Labor, Docket No. 203,490.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2010
Before Judges Axelrad and Sapp-Peterson.
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 ...