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Frank W. Hutchinson v. Board of Review

November 9, 2011

FRANK W. HUTCHINSON, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, AND ELITE TRANSPORTATION OF NEW JERSEY, INC., RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 17, 2011 -

Before Judges A. A. Rodriguez and Sabatino.

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.*fn1 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 ...


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