On appeal from Department of Labor and Workforce Development, Docket No. 112,131.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2007
Before Judges Fuentes and Grall.
Martin F. Kupka, formerly employed by Galaxy Steel Door & Frame Co. (Galaxy), appeals from a denial of unemployment benefits. The Board of Review (Board) determined that Kupka left his employment voluntarily and without good cause related to his work. On that basis, the Board concluded that Kupka was disqualified pursuant to N.J.S.A. 43:21-59(a). Because the Board's decision is supported by substantial credible evidence, we affirm with only a brief explanation. R. 2:11-3(e)(1)(D).
Kupka filed his claim for benefits on April 9, 2006. On May 5, 2006, a Deputy to the Director of the Division of Unemployment Insurance determined that Kupka left his job with Galaxy due to work conditions that had an adverse effect on him and after exhausting all avenues available to resolve the situation. On that basis, the Deputy concluded that Kupka was eligible for benefits. Galaxy sought review of that determination, and the Appeal Tribunal scheduled a hearing by telephone conference. The Tribunal determined that Kupka left work for personal reasons and without good cause attributable to the work. Although Kupka did not file a timely request for review of that adverse determination, the Board concluded that he established good cause for the delay, considered the merits of his request and adopted the Tribunal's decision as supported by the record. This appeal followed.
The record includes the following credible evidence that provides adequate support for the Board's determination. Kupka served as Galaxy's vice president of sales between June 1, 2005 and March 1, 2006. According to Kupka, he left his job because Galaxy was making changes in both its product line and personnel. Kupka was concerned that the transition was placing a strain on customer relations and would have a negative impact on sales and his reputation. During a discussion of the changes and his future at Galaxy, his employer assured him that Galaxy wanted him to "be part of the company and [to] grow" with the company and its sales. Despite the assurance, because he could not respond to customers as effectively as he had in the past and his name had not been listed on Galaxy's new brochure and catalogue, Kupka felt "uncomfortable." He found and intended to begin work with a new employer. Galaxy subsequently gave Kupka notice of its intention to enforce a non-compete clause in his contract of employment. At that point, he opted to file a claim for unemployment compensation.
Unemployment compensation is not available to an employee who "has left work voluntarily without good cause attributable to such work . . . ." N.J.S.A. 43:21-5(a). Because Kupka's testimony amply supports the Board's conclusion that he did not have "good cause" for leaving Galaxy, there in no basis for this court to disturb the Board's decision, which is entitled to deference. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
Relying upon this court's decision in Gerber v. Bd. of Review, 313 N.J. Super. 37 (App. Div. 1998), Kupka contends that Galaxy's decision to enforce the non-compete clause entitles him to benefits during the period of his contractual ineligibility for work with a competitor of Galaxy. Unlike the employee in Gerber, Kupka's inability to begin his new job was based on his non-compete agreement with Galaxy, not a "unilateral action of the employer." Id. at 46. The Board's decision to reject this claim is not arbitrary, capricious or unreasonable. Brady, supra, 152 N.J. at 210-11.
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