RUTH A. MONGILLO v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and BURLINGTON COUNTY TIMES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4077-09T4

RUTH A. MONGILLO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR, and BURLINGTON COUNTY TIMES, INC.,

Respondents.

________________________________

September 29, 2011

Argued May 31, 2011 Decided

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from the Board of Review, Department of Labor, Docket No. 184,579.

Joseph M. Pinto argued the cause for appellant (Polino and Pinto, P.C., attorneys; Mr. Pinto, on the brief).

Donald Palombi, Deputy Attorney General, argued the cause for respondent Board of Review, Department of Labor (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Palombi, on the brief).

Respondent Burlington County Times, Inc. has not filed a brief.

PER CURIAM

Ruth A. Mongillo (Mongillo) again appeals from final agency action of the Board of Review (the Board) denying her application for unemployment compensation benefits in connection with the termination of her employment by the Burlington County Times, Inc. (the Times), following our remand in Mongillo v. Bd. of Review, No. A-6107-07 (App. Div. Apr. 20, 2009), to allow her to reopen her case for presentation of additional evidence. We now affirm.

The facts of this case were adequately set forth in our earlier opinion, id. at 2-5, and need not be repeated here. At the remand hearings, two witnesses testified on behalf of the Times, Ken Long and Stanley Ellis, and Mongillo also testified.

On May 18, 2009, Long testified that he was the controller for the Times when the severance package was offered to employees and accepted by Mongillo. He testified that the Times wanted to reduce personnel because of deteriorating business conditions. In making the offer to fifty employees, management focused on job titles and operational needs. Salary was not a consideration. Mongillo was offered the package because she was the sole outside salesperson.

Long conducted a meeting attended by Ellis to explain the severance package at which he presented the fifty selected employees with a written offer dated December 4, 2007, containing the severance agreement. He explained the circumstances and answered any questions. He had been counseled by the Times that in presenting the package to employees he should not make it appear as a threat with the possibility of layoffs. He could not recall whether he had met with Mongillo individually but he would only have told her what he was telling the other fifty employees.

In the event that layoffs were ultimately required, Long testified that seniority would be a factor in retaining employees and that Mongillo with forty years of service would not have been laid off, although she might have had to perform other duties. Mongillo was "a respected and good employee and certainly would have been capable of doing anything." He gave no assurances that unemployment benefits would be available, merely stating that the determination was made by the State and not the Times, although it would not contest such an award. Subsequently, there were several rounds of personnel reduction.

Mongillo testified immediately after Long and stated that she had been called into a meeting with Long, Ellis, and the advertising sales manager before December 4 and was told that the Times could not guarantee her a job if she remained and that they needed her to accept the package. No other employees were present. Sometime after December 4, Long told her it would be the "best thing" for her if she accepted the package because the Times was in a lot of trouble and could not guarantee anything with regard to her job.

Ellis testified on September 19, 2009, that he was the publisher during the time of the severance package. He selected the employees to whom the offers should be made, focusing on positions, not personnel, and company functionality after positions were eliminated. He believed that the job duties of the only outside sales position could be redistributed to other sales positions. He wanted to eliminate twelve to fifteen positions.

At the meeting with Ellis and the employees, he explained that the package was purely voluntary but did not explain what would happen if it was not successful in reducing positions sufficiently. The Times had been advised by counsel not to mention layoffs and to allow employees to make their own choice without any implied compulsion. He did announce the goal of twelve to fifteen acceptances. He had no one-on-one conversation with Mongillo. He was not aware of any conversation anyone had with her advising her that the "best thing" would be for her to take the package.

Ultimately, only seven employees accepted the package. However, there were no layoffs in the sales department. Had Mongillo not taken the package, she probably would have continued in a sales capacity, keeping her existing real estate accounts. She handled them well and had developed a rapport with them. However, it was possible that her job duties would have expanded to include taking on additional accounts, depending on what other moves were ultimately made.

On September 25, 2009, the Appeal Tribunal found that Mongillo:

was never informed by management that her position was in imminent danger of being eliminated if she chose not to accept this package. The employer "did not believe" the claimant's job would have been eliminated if she chose not to accept the buyout package. The employer had planned to leave the claimant with continual business accounts in the real estate market if she had chosen to remain employed, which would have given the claimant the opportunity to continue working either in the exact, or very comparable, job duty capacity.

Relying on N.J.S.A. 43:21-5(a), N.J.A.C. 12:17-9, and Self v. Board of Review, 91 N.J. 453 (1982), the Appeal Tribunal again deemed Mongillo disqualified for benefits because she left work voluntarily without good cause attributable to such work. Mongillo appealed this decision to the Board.

On March 26, 2010, the Board found that Mongillo "left work voluntarily without cause attributable to such work." It continued: "Additionally, mere speculation about job stability is insufficient to establish good cause to quit as require[d to] recover unemployment compensation." It found that she failed to "demonstrate a lack of suitable continuing work" or "statements or actions of [the] employer showing a very strong likelihood of imminent layoff." Further, the evidence did not establish "circumstances . . . so compelling as to indicate that there [was] a strong possibility that fears about . . . job security will in fact materialize." Nor were there "serious impending threats" that Mongillo's job would be lost. As such, she failed to demonstrate that a well-founded belief that her job was "imminently threatened," as required by Fernandez v. Board of Review, 304 N.J. Super. 603 (App. Div. 1997). Thus, the Board affirmed the decision of the Appeal Tribunal. This appeal followed.

Mongillo contends that she was not disqualified for benefits because there was a substantial probability that she would be laid off within forty-five days. Thus, she would have suffered a substantial economic loss, which presented her with good cause for her separation from employment. Finally, she contends that she was not treated with fundamental fairness by the agency.

The judicial role in reviewing decisions of administrative agencies is restricted. "Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001); see also Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by Mongillo are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(D). The findings and conclusions of the Board are supported by substantial, credible evidence in the record. The Board was well within the scope of its authority in crediting the testimony of Lang and Ellis and concluding that Mongillo failed to prove that she was in imminent danger of losing her job. Brady v. Board of Review, 152 N.J. 197, 219 (1997); Fernandez, supra, 304 N.J. Super. at 607; and Trupo v. Board of Review, 268 N.J. Super. 54, 61-62 (App. Div. 1993), are dispositive given the facts as found by the Board.