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Policari v. Board of Review

July 21, 2010

MICHELLE C. POLICARI, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND U.S. AIRWAYS, RESPONDENTS.



On appeal from a Final Decision of Board of Review, Department of Labor, 188,030.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued June 11, 2010

Before Judges Grall and Messano.

Michelle C. Policari appeals from the final decision of the Board of Review (the Board) that affirmed the Appeals Tribunal's (the Tribunal) determination that she was ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-5(a), i.e., that she left work voluntarily without good cause attributable to her work. We have considered the arguments she has raised in light of the record and applicable legal standards. We affirm.

Policari was initially determined to be eligible for benefits. Her employer, respondent U.S. Airways (U.S. Air), appealed that determination, and the Tribunal conducted a hearing.

The salient testimony before the Tribunal revealed that Policari had worked for U.S. Air as a customer service agent at Newark Airport since 1983. She left work on June 30, 2005, having taken a severance package offered by her employer in February. She testified that she knew the company had filed for bankruptcy protection, had closed its base of operations in Pittsburgh, and had authorized some eight hundred employees to exercise their seniority rights to relocate to other bases of operation, including Newark. She was further advised that "furloughs [we]re right around the corner," so she accepted the company's "package." This included a lump sum payment of $15,000, an extension of her benefits, and lifetime travel privileges with the airline. Despite her years of service, Policari claimed she "had only two people underneath [her]" in terms of seniority. She accepted the "package" in February, though she acknowledged she could have rescinded her decision thereafter for forty-five days.

Maria Correa,*fn1 an administrative assistant with U.S. Air, testified that Policari was never told that she "w[as] going to be laid off." People with ten or more years of service were offered severance packages and were free to take them if they so chose. According to Correa, had Policari not accepted the severance package, based upon her seniority, she would still be employed with U.S. Air in 2008. Correa noted the company "didn't have any lay-offs" in 2005 and "continued to hire." She further noted that when the severance package was offered, U.S. Air was "already out of bankruptcy."

The Tribunal concluded Policari was ineligible for benefits having left work voluntarily without good cause associated with the work. Upon Policari's appeal, the Board remanded the matter "for additional testimony." A second hearing was conducted.

Policari testified that her manager, "Mr. Perria," advised her to take the severance package in 2005. She reiterated her earlier testimony that given her seniority at the time and "bumping rights," she believed "it was very likely that [she] was going to be bumped out, moved to part time, or bumped out entirely losing [her] benefits...." Policari acknowledged that she spoke to no one else and "went by [her manager's] word."

Correa testified that Policari's manager, Perria, was not authorized to make any statements on behalf of the company. She claimed that severance packages were circulated, and employees were told to "talk to their union... and even speak to an attorney about it...." She reiterated that based upon Policari's seniority, had she stayed with U.S. Air, she would now be "five out of... twenty-six" in terms of seniority. Correa also explained that because Policari was over forty years of age, she could have "backed out" of the package during a time when U.S. Air had announced merger plans with another carrier, America West. Correa testified that no customer service agents from the Newark area were in fact "laid off."

Policari further testified on rebuttal that during the relevant time in 2005, no one could guarantee that U.S. Air would remain solvent. Her benefits had been reduced, her compensation was reduced by thirty percent, her shift assignments had been changed, and she cited public statements from upper management at the time that expressed a bleak outlook for the company. Her union representatives "had no idea" if she would be laid off.

The Tribunal issued its second decision on November 18, 2008. It determined that Policari had left work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a), and disqualified her from benefits. The Board issued its decision on January 15, 2009, affirming the Tribunal's decision, and this appeal followed.

Our review of final agency action is quite limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citation omitted). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999) (citations omitted). Furthermore, the Board's "'interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive ...


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