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Paci v. Board of Review

December 21, 2009

GREGORY J. PACI, APPELLANT,
v.
BOARD OF REVIEW AND HERMANN LEASING COMPANY, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. BR 187,932.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 9, 2009

Before Judges Axelrad and Fisher.

Gregory J. Paci (appellant) contends that the Board of Review erred in concluding he was not entitled to unemployment benefits as a result of his resignation from Hermann Leasing Company (Hermann). We find no merit in his appeal and affirm.

The record reveals that Hermann employed appellant as a commissioned salesperson from July 25, 2007 to April 18, 2008. The parties acknowledge that appellant had previously been employed by a business that had greater technological resources and capabilities than Hermann. As a result, appellant quickly became frustrated by Hermann's slower methods. In particular, appellant complained of Hermann's inability to more rapidly service customers and account for earned commissions. One of Hermann's employees testified at the hearing before the Appeal Tribunal that Hermann provided quarterly commission reports to salesmen; she stated that appellant felt this was inadequate and that reports should have been circulated on a monthly basis.

In short, the record reveals that rather than adjust to Hermann's methods, appellant thought it was Hermann that ought to change. Eventually, Joe Waldner -- another Hermann salesman who had been employed by the same entity that had previously employed appellant -- spoke with a supervisor about the situation and was permitted to speak with appellant to "just try to help him get through that transition from the way he thinks you know the way things should be done to the way things are done around here."

Appellant viewed Waldner's collegial advice as something quite different. He testified that Waldner threatened him when he said, "I'd hate to see something happen to you." Appellant interpreted this statement as suggesting that if appellant did not "work in their fashion and stop requesting the things that you need constantly, there's not a future here for you."

Appellant testified that after this discussion with Waldner he went to his supervisor to ask whether Waldner had been authorized to speak to him. When the supervisor affirmatively responded, appellant testified that this was really the straw that broke the camel's back and I said to him you know with everything that's going on and transpiring, I'm going to have to think about resigning because I can't operate under these conditions with the customer not having their needs met and now this political thing going on with [Waldner] speaking to me

....

A short time later that day, appellant approached the owner and resigned.

The Appeal Tribunal found credible Waldner's testimony that he did not threaten appellant and that he spoke to appellant out of a desire to help him adjust to Hermann's business practices. As a result of this and other findings, the Appeal Tribunal concluded that appellant was disqualified because he did not prove good cause attributable to the work for leaving his employment with Hermann. N.J.S.A. 43:21-5(a). The Board of Review affirmed that determination.

Our review of such a final agency decision is limited. We will not reverse an agency decision unless it is "arbitrary, capricious or unreasonable" or unsupported by "substantial credible evidence in the record as a whole." Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985). We are obligated to defer to agency fact findings that are supported by the record. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008).

Considering the record contained evidence, which the agency was entitled to credit, that Waldner spoke with appellant in order to help him adjust rather than to threaten his employment, appellant was obligated to show that the conditions of employment justified his resignation. The test is not whether the employee was dissatisfied or uncomfortable with a working condition. In order to be eligible for unemployment benefits, an employee must do all that is "necessary and reasonable in order to remain employed." Id. at 549 (quoting Brady v. Bd. of Review, 152 N.J. ...


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