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John M. Custin v. Board of Review

August 16, 2012

JOHN M. CUSTIN, APPELLANT,
v.
BOARD OF REVIEW AND WALMART ASSOCIATES, INC., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 284,329.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2012

Before Judges Nugent and Carchman.

John M. Custin appeals from the January 24, 2011 final agency decision of the Board of Review, Department of Labor (the Board), which affirmed the determination of an Appeal Tribunal that disqualified him from receiving unemployment benefits under N.J.S.A. 43:21-5(b), based on misconduct connected with his work. We affirm.

Custin worked for Walmart Stores, Inc. (Walmart), from April 11, 2008 through April 26, 2010. After he was discharged, he filed a claim for unemployment benefits. On April 28, 2010, the Workforce Development Unemployment Insurance Office mailed him a notice of "Appointment for Claims Examiner Interview," which explained that the reason for the appointment was "You may have been separated for misconduct in connection with your work." On May 13, 2010, a deputy director of the Division of Unemployment and Disability Insurance determined that he was eligible for benefits. Walmart appealed, and a telephonic Appeal Tribunal hearing was conducted on June 28, 2010.

Walmart personnel manager Beverly Shuck*fn1 and Custin testified at the hearing. At the outset, Appeals Examiner Danielle Dibella declined to hear Custin's motion to dismiss the appeal, then explained that "[t]he issues to be resolved . . . are the issues of [Custin] voluntarily leaving and [his] discharge for misconduct." Dibella further explained that Walmart claimed Custin voluntarily left the job "without good cause attributable to the work."

According to Shuck, Custin was employed by Walmart as a sales associate from April 11, 2008, through April 26, 2010. He was terminated because he was a "no call[,] no show," having failed to appear for work on April 17, 19, 21, 22, and 23. Shuck explained the procedure to be utilized by an employee who intends to "call out." She testified, "[t]here is a 1-800 number [(hotline)] that Walmart has w[h]ere you get a . . . [verification] number and then they transfer you to the store where [you] would speak to an assistant manager or manager." When employees call, they receive the verification number "so that you have proof that you called." Shuck knew that Custin did not call out because she had the computer records and "it [was] reported to [her] every morning and . . . afternoon. And [she] check[ed] . . . the call out list."

After Custin failed to call out, Shuck spoke to him on April 23, 2010. When she telephoned him, his mother answered and "called him to the telephone." Shuck described the conversation:

I asked him what was the matter[,] why he has been out of work and not calling in. And he was very upset[,] . . . he told me that his legs hurt and he figured if he can't walk he can't work. And I said[,] well[,] John you have to call in. He's been here long enough to know that. That you have to call out. It's no call[,] no show.

Shuck reported the situation to the manager and Custin was subsequently terminated.

Shuck explained that employees were advised of the "call out" policy at orientation. Additionally, in the lunch room, signs were posted and business cards were available with the hotline number. Shuck testified that Custin had been absent on occasions other than the five days leading up to his termination, and that he normally called out. Shuck repeated that when she spoke to Custin on April 23 and asked him why he did not call out, he replied "that his legs hurt and he figured if he couldn't walk[,] he couldn't work." Shuck said they were "his exact words."

In response to Dibella's questions, Shuck also testified that Custin's "exit interview" and an attendance report had been sent to the Tribunal. The exit interview indicated that Custin was "re-hirable" and that Walmart would hire him if a position became open and he "fit into [it]." Custin did not request copies of those documents either when Shuck referred to them or at any other time during the hearing.

After verifying the accuracy of his dates of employment, position, and wage, Custin testified that he called out on April 17 because his legs were hurting so badly that he could not get out of bed. He was unable to get confirmation when he telephoned the hotline because "something was wrong with it." According to Custin, he "never got the confirmation number. It disconnected [him]. There was a problem with their phone that whole time." Custin also called the store at 6:30 or 7:00 a.m., when people were ...


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