On appeal from the Board of Review, Department of Labor, Docket No. 296,008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
The principal issue in this appeal is whether an employee quit or was fired after a dispute with his employer over its no- smoking policy. After a hearing, the appeals examiner determined the claimant, Robert H. Still, "left work voluntarily without good cause attributable to the work," N.J.S.A. 43:21-5(a), and was ineligible for unemployment compensation. After the Labor Department's Board of Review (Board) affirmed the Appeal Tribunal's decision, Still appealed. Given our deference to the agency's decision-making, we affirm.
We discern the following facts from the record, which includes a testimonial hearing by telephone on September 29, 2010. Starting in July 2007, Still worked for National Pest Control, Inc. (National) as a full-time pest control technician. He mixed pesticides and rodenticides and applied them at customers' premises. He spent his typical workday on the road in a company truck, traveling from one customer to another.
Still asserted that Michael Sands, National's president, discharged him on July 17, 2010 for refusing to endorse a workplace policy prohibiting smoking in company vehicles. Still was a habitual smoker and admitted that he smoked in his company-provided truck. He explained he would not smoke at customers' premises, nor did the workday allow him sufficient time for smoke breaks. Still asserted there was no company policy prohibiting him from smoking, Sands knew he smoked in his truck and Sands never told Still he could not, until the events leading to Still's departure. After the fifteen-year-old truck Still had used each day broke down, Still was permitted to use Sands's vehicle. When Still returned the vehicle to Sands, it was apparent Still had smoked in the vehicle.
Still asserted that Sands then presented him with a paper stating he would not smoke in company vehicles. Still testified, "he gave me a choice to sig[n] the paper or I couldn't work there." Still refused to sign the paper, and he asserted that Sands terminated him. Still stated he did not intend to leave his job. On the other hand, he stated that if he could not smoke in his vehicle, he would need to take breaks to smoke. Although the breaks were allowed, they would consume two hours a day, and he would be unable to finish his assigned work.
Sands testified Still "walked off the job." He asserted the company had always prohibited smoking in the company's vehicles and he made Still aware of that throughout his employment, although he admitted the policy was not written. He testified, and Still admitted, that nicotine repelled rodents and insects, reducing the effectiveness of rodenticides and insecticides. However, Sands also admitted that nicotine could have a negative impact even if Still smoked outside the vehicle, and then immediately worked with the materials, but Still was not prohibited from smoking outside the vehicle. Sands said the no-smoking-in-company-vehicles policy was also designed to maintain the value of company vehicles.
After Sands discovered that Still had smoked in Sands's vehicle, he told Still he wanted him to sign a company handbook, which included the smoking ban, but which, Sands admitted, he had never distributed to employees. Sands testified that in response, "[Still] walked away. He said [']I'm through.['] Called several employees and told them the same thing. He's through."
Sands testified that Still made no effort to negotiate an accommodation of his smoking.
He didn't say he refused to sign the paper. He didn't say give me another chance[.]
[H]e said[,] [']I'm outta here.['] And he felt as though there wasn't . . . a big financial problem [and] that . . . it would be more of a burden on the business that looked out for him for almost three years.
Sands declined to answer whether he would have discharged Still if he had refused to sign the paper, but did not walk away. On the other hand, Sands testified that if Still had abided by the no-smoking policy, he would have been retained.
Still filed a claim for unemployment benefits, which was initially denied by a Notice of Determination dated August 4, 2010. The notice stated,
There is no evidence that the conditions of your employment were so sever[e] as to cause you to leave available work and become unemployed. Your employer stated that there was to be no smoking in the truck, he did not state that there was to be no smoking.
In the course of your work day, there are plenty [of] opportunities for [a] "smoke break". You did not explore all avenues available before ...