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Tarnowski v. Board of Review

Superior Court of New Jersey, Appellate Division

September 9, 2013

DAVID TARNOWSKI, Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR and NEW NGC, INC., Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 12, 2013

On appeal from the Board of Review, Department of Labor, Docket No. 298, 207.

Law Offices of William B. Hildebrand, L.L.C., attorneys for appellant (Mr. Hildebrand, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent New NGC, Inc., has not filed a brief.

Before Judges Harris and Hayden.

PER CURIAM

Claimant David Tarnowski appeals from the final decision of the Board of Review, which deemed him ineligible for unemployment benefits, based upon the administrative determination that he was terminated from his job for severe misconduct. N.J.S.A. 43:21-5(b). We reverse and remand for the Board to consider whether the grounds for Tarnowski's termination constituted severe misconduct under Silver v. Board of Review, 430 N.J.Super. 44 (App. Div. 2013).

We discern the following facts from the record. Tarnowski worked as a Production Technician at National Gypsum Company, Inc., from March 1989 until his termination on July 2, 2010. National Gypsum used a point system to track attendance, which provided for termination of an employee who accumulated twelve points from attendance violations within a rolling one-year period. Tarnowski received written warnings advising him of the attendance policy on February 23, April 6, and April 12, 2010. Failure to call in prior to the start of an employee's shift on two separate occasions within a one-year period was also grounds for termination.

On June 27, 2010, early into his shift, Tarnowski received an emergency call informing him that his cousin in South Carolina was on life support. He left work immediately, telling his coworker to tell his foreman that he was leaving the state. He traveled to South Carolina and, after his cousin died, stayed for the funeral, returning to New Jersey on July 3, 2010. Tarnowski called his employer on the morning of June 28, but could not reach anyone who could authorize a leave of absence. Between June 28 and July 3, he also "could not get ahold of anybody, " even though the Human Resources department was open during regular business hours.

National Gypsum terminated Tarnowski's employment, effective July 2, 2010, and sent a letter via certified mail the same day to inform him. Tarnowski immediately filed a claim for unemployment benefits. On September 1, 2010, a Deputy in the Division of Unemployment Insurance for the New Jersey Department of Labor held that Tarnowski was disqualified for benefits from June 27, 2010 because he abandoned his job. The Deputy also demanded repayment of the benefits he had been paid to date.

Tarnowski appealed the determination and participated in a telephone hearing on October 7, 2010. After the hearing, the Appeals Examiner affirmed the Deputy's determination. Tarnowski then appealed to the Board of Review. In a May 31, 2011 decision, the Board disagreed that Tarnowski abandoned his job and instead concluded that he had been terminated for "severe misconduct." Tarnowski appealed to this court. We reversed and remanded the case for reconsideration by the Board of Review to determine whether Tarnowski's "conduct, which occurred prior to July 1, 2010, permitted application of the penalty for severe misconduct."

On October 24, 2011, the Board of Review again concluded that Tarnowski was appropriately disqualified for severe misconduct, reasoning that "while his unauthorized absence commenced in June, it ...


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