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Roger W. Tasnady, Jr v. Board of Review and Callaremi Pontiac-Buick-Cadillac-Gmc

April 2, 2012


On appeal from the Board of Review, Department of Labor, Docket No. 246,221.

Per curiam.


Submitted February 28, 2012 -

Before Judges Simonelli and Accurso.

Appellant Roger W. Tasnady, Jr., formerly employed as a car salesman for Callaremi Pontiac-Buick-Cadillac-GMC, Inc. (Callaremi), appeals from the final decision of the respondent Board of Review (Board) disqualifying him from receipt of unemployment compensation pursuant to N.J.S.A. 43:21-5(a). The Board determined that appellant left his job without good cause attributable to the work. We affirm.

Appellant began his employment with Callaremi in March 2004.*fn1 He sold General Motors (GM) cars earning a base salary of $275 per week plus commissions. In 2009, GM underwent a dramatic restructuring involving the closure of hundreds of dealerships nationwide. On June 2, 2009, GM advised Callaremi that its dealership would be closed as part of this effort, effective October 31, 2010. Callaremi appealed GM's decision to terminate the franchise. GM denied Callaremi's appeal in June 2009. Callaremi advised its employees of the loss of its appeal but continued its efforts to save the franchise. As part of those efforts, Callaremi circulated and attempted to obtain signatures on a letter to Congress urging financial aid to the auto industry to enable GM to stay in business.

Appellant testified at the hearing that Lela Callaremi, wife of the dealership's owner, approached him on June 16 or 19th to sign this letter, which he referred to as "some sort of political document," which he was uncomfortable doing and refused to sign. Appellant contended that Lela Callaremi harassed him for his refusal to sign the letter and that the entire Callaremi family thereafter ignored and refused to speak to him. Several weeks later, on July 17, 2009, appellant, having concluded that Callaremi had no future with GM and there being no cars on the lot and no customers coming in, tendered his resignation. It is undisputed that the Callaremi dealership never closed its doors or laid off any employees. The parties also agree that following appellant's resignation, Callaremi succeeded on its second appeal to GM and retained two of its four GM car lines.

The Appeal Tribunal acknowledged the threatened loss of the franchise but noted that claimant was never advised by Callaremi of any impending layoff or discharge and thus rejected as unsupported appellant's claim that he left because he felt his future was in jeopardy. The Appeal Tribunal also rejected claimant's charge of harassment finding the verbal altercation between appellant and Lela Callaremi was an isolated incident. Finally, the Appeal Tribunal rejected any claim that a reduction in pay as a result of slow sales qualified claimant for employment benefits, specifically finding that: [t]he slowed sales the employer and claimant may have been experiencing [were] part of a poor global economy, leading to a global restructuring of the automobile industry. The global economic turndown was something [affecting] all working individuals . . . . The automobile industry restructuring was the industr[y's] reaction to attempt to preserve the industry. The claimant was impacted by the poor global economy, the automobile industr[y's] reaction to this, as well as his particular dealership taking part in this. It is understandable the claimant may have felt he was being impacted excessively as a result of his pay structure being heavily based on sales and the corresponding commissions and bonuses. However the[se] were his original terms of hire and external forces were always a contributing factor in his ability to earn money. Therefore, the claimant's allusion[s] to his current earning potential are rejected as conditions which always existed throughout his career. The claimant's leaving of work because he felt his future was in jeopardy, he was harassed, he felt unwelcome, and his present earnings were temporarily affected, are all rejected and viewed as personal. Therefore the claimant is disqualified for benefits as of 07/12/09, under N.J.S.A. 43:21-5(a), as the claimant left work voluntarily without good cause attributable to such work.

The Board accepted these findings.

On this appeal, Tasnady contends that he had good cause for leaving his job attributable to the work as GM's revocation of Callaremi's franchise meant that he could no longer sell cars and he was frozen out by his bosses. Our role in reviewing the decision of an administrative agency is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). We also give due regard to the opportunity of the one who heard the witnesses to judge their credibility. Logan v. Bd. of Review, 299 N.J. Super. 346, 348, (App. Div. 1997). "If the Board's factual findings are supported by 'sufficient credible evidence, [we] are obligated to accept them.'" Brady, supra, 152 N.J. at 210 (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Ibid.

N.J.S.A. 43:21-5(a), a provision of the New Jersey Unemployment Compensation Law, states that a claimant is disqualified for benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed . . . ." Claimants bear the burden of proof to establish their right to unemployment benefits. Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964); DiMicele v. General Motors Corp., 51 N.J. Super. 167, 171 (App. Div. 1958), aff'd, 29 N.J. 427 (1959)). An employee who leaves work voluntarily, bears the burden to prove he did so with good cause attributable to the work. Ibid. Although the statute does not define "good cause," our courts have long construed the statute to mean "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). N.J.A.C. 12:17-9.1(b) defines "good cause" as "a reason related directly to an individual's employment, which was so compelling as to give the individual no choice but to leave the employment."

Reviewing the record in the light of these standards convinces us that we have no cause to disturb the Board's determination that appellant is disqualified from receiving unemployment benefits. Although appellant contends that the objective facts led him to conclude that he would be subject to imminent layoff and could no longer earn a living selling cars for his employer after GM advised of the termination of the franchise, the Appeal Tribunal concluded that his view was a personal one, not supported by the evidence. Appellant admits that he was never advised that he would be laid off or discharged. To the contrary, the Appeal Tribunal found that Callaremi aggressively worked to keep its doors open and, in the end, never closed or laid off a single employee. The record supports the Tribunal's further finding that appellant's altercation with management over the letter Callaremi was circulating urging employees to support federal aid to the auto industry, was an isolated incident and not harassment.

Finally, the Appeal Tribunal engaged in a thorough exposition of its rejection of appellant's implied claim that slow sales provided additional good cause for his resignation. The Tribunal's conclusion that external forces such as the global economic downturn disproportionately affecting auto sales were always a contributing factor in claimant's ability to earn commissions, is based on substantial credible evidence in the record. We defer to the Board's expertise and superior knowledge in the area of unemployment compensation in its acceptance of these findings. Brady, supra, 152 N.J. at 210 (citing Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). The Board's determination was neither arbitrary nor capricious and ...

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