On appeal from the Board of Review, Department of Labor, Docket No. 184,579.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez and C.L. Miniman.
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 ...