FRED GAGLIARDI v. BOARD OF REVIEW and FUTURE SOLUTIONS CONTRACTING LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4255-09T4

FRED GAGLIARDI,

Appellant,

v.

BOARD OF REVIEW and FUTURE

SOLUTIONS CONTRACTING, LLC,

Respondents.

_______________________________

May 19, 2011

Submitted May 9, 2011 - Decided

Before Judges Grall and C.L. Miniman.

On appeal from the Board of Review,

Department of Labor and Workforce

Development, Docket No. 233,594.

Fred Gagliardi, appellant pro se.

Paula T. Dow, Attorney General,

attorney for respondent Board of

Review (Ellen A. Reichart, Deputy

Attorney General, on the statement

in lieu of brief).

Slaven Law Firm, LLC, attorney for

respondent Future Solutions Contracting,

LLC (Stephen E. Slaven, of counsel and

on the brief).

PER CURIAM

Claimant Fred Gagliardi, formerly employed as sales manager for Future Solutions Contracting, LLC (Future Solutions), appeals from a final decision of the Board of Review (Board) affirming the Appeals Tribunal's denial of unemployment compensation benefits. The Board denied benefits on the ground that Gagliardi was disqualified because he left his employment voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5(a). We affirm.

Gagliardi was hired by Future Solutions in May 2008. Although we have not been provided with a copy of the employment contract, undisputed testimony before the Appeals Tribunal established that it provided for a salary of $1000 per week plus three percent commission on sales related to construction projects. There was no dispute that the parties agreed that the compensation package set forth in the contract would be renegotiated after one year to provide for a lower salary and a higher percentage of commissions.

In May 2009, the owner of Future Solutions reduced Gagliardi's salary by $200 per week and raised his commission from three to four percent. The change was not negotiated.

When Gagliardi received the first paycheck at the new salary rate, he decided to leave work. He sought $15,000 for unpaid commissions. Following negotiations with the owner, Gagliardi agreed to accept a $6000 payment in full satisfaction of commissions due but not paid. Prior to that agreement, Gagliardi had been paid commissions after his employer received payment on the contracts he had procured. Neither Gagliardi nor his employer had evidence showing, or was willing to estimate, the total commissions Gagliardi earned during the first eleven months of employment.

On hearing the testimony summarized above, the appeals examiner asked Gagliardi if the change in salary was "enough for [him] in [his] mind [to] sever the working relationship." Gagliardi responded: "If it was negotiated the way we agreed prior to that I think we could have come to an amicable agreement but there was no negotiation involved."

The Appeals Tribunal found that Gagliardi had agreed to negotiate a change in the structure of his compensation when he was hired and that his employer had no intention of severing their relationship when he adjusted compensation. Noting the $6000 paid on outstanding commissions, the Appeals Tribunal further found that the one-percent increase in Gagliardi's commission rate would make up "some, if not all," of the salary he lost. On that basis, the Appeals Tribunal concluded that Gagliardi was disqualified pursuant to N.J.S.A. 43:21-5(a), because he had not shown his departure was based on good cause attributable to the work, and the Board agreed with that determination.

Our authority to review a determination of the Board of Review is limited. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). We must accept factual findings that are supported "by sufficient credible evidence," and, when the record provides that support, a court cannot intervene unless the decision is arbitrary, capricious or in conflict with the governing statutes. Id. at 210.

In this case, the findings of the Appeals Tribunal, adopted by the Board of Review, had adequate support in the record, and the Board followed the statute as construed by our courts. "Claimants bear the burden of proof to establish their right to unemployment benefits," including the burden of proving that a voluntary departure from employment was for "good cause attributable to work." Id. at 218. "Good cause" is assessed under a test of "'ordinary common sense and prudence'" and in light of the claimant's "'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Id. at 214 (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52-54 (App. Div. 1964)). There is "good cause" when the decision is "'compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones.'" Ibid. (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983)).

Applying the foregoing standards, we cannot intervene. Without evidence as to the commissions Gagliardi received during his first year of employment and was likely to receive in the second, he failed to establish a "substantial" change in his compensation. Gagliardi's dissatisfaction with his employer's failure to negotiate the new compensation structure, without evidence of its impact, did not compel the Board to find good cause for his departure attributable to the work.

Affirmed.