Barcomb, In re, 113-73

• Decision Date: 05 February 1974
• Docket Number: No. 113-73,113-73
• Citation: 132 Vt. 225,315 A.2d 476
• Parties: In re May BARCOMB.
• Court: Vermont Supreme Court

Page 476

315 A.2d 476

132 Vt. 225

In re May BARCOMB.

No. 113-73.

Supreme Court of Vermont.

Feb. 5, 1974.

Stephen R. Elias, Montpelier and Zander B. Rubin, Rutland, Vermont Legal Aid, Inc., for plaintiff.

Raymond S. Fitzpatrick, Barre, for Department of Employment Security.

SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

KEYSER, Justice.

This is an appeal from the decision of the Vermont Employment Security Board denying appellant's claim for unemployment compensation benefits under Title 21 of the Vermont Statutes Annotated.

The following facts are not in dispute. The appellant resided in Enosburg Falls and was employed as a turner and presser for John's Dress Manufacturing Company in Richford, Vermont. In the spring of 1972, she left this work because she had no way to travel the ten miles from Enosburg Falls to Richford.

Subsequently, claimant began working at Sonny's Dress Shop in Enosburg Falls but due to financial trouble the shop closed terminating her employment there. In August, 1972, John told claimant he was opening a dress shop at what was formerly a fruit store in Enosburg Falls and asked her to come to work.

After claimant had worked there a day or so problems arose for John's regarding approval of the dress shop at that location and couldn't stay there. Claimant testified-'So, he (John) asked me if I'd be willing to go to the Richford shop to work until they got straightened around at the other (Sonny's) sewing room.' Later, John's took over the Sonny's Dress Shop quarters and opened his dress operation there. Claimant asked John to return to the Enosburg shop but was never given the opportunity to do so.

She accepted the transfer to Richford because at that time she had an automobile and could travel between home and work. Her automobile was old and later became inoperative. Appellant attempted to continue work at Richford without a car, but on January 5, 1973, it caused her to terminate her employment because of this transportation problem. She immediately applied for unemployment benefits under Titile 21 of Vermont Statutes Annotated. After hearings she was denied Benefits by the claims examiner, appeals referee and the board and her appeal followed.

Questions certified to this Court by the board are whether the evidence supports the findings of fact of the board and whether the findings support the conclusion and decision of the board. Basically, the issues are (1) did claimant leave the employ of her last employing unit voluntarily without good cause attributable to such employing unit and (2) is claimant available for work?

She first claims that she had 'good cause' to leave John's. 21 V.S.A. § 1344 provides in part:

An individual shall be disqualified for benefits: (1) When he has left the employ of his last employing unit voluntarily without good cause attributable to such employing unit. . . .

The board adopted as its findings the findings of the referee based on the evidence before the board and a review of the evidence before the referee. It concluded thereon that the claimant left the employ of her last employing unit voluntarily without good cause.

Although appellant testified she was 'promised' a job back in Enosburg when she went to the Richford shop, there was no finding to this effect. The evidence clearly establishes that the only reason for her leaving the Richford job was because she was without a car and had no transportation available to get to work.

Upon our review of the record we find there is present credible evidence which fairly and reasonably supports the board's findings of fact on this issue of 'good cause.' In Re Wheelock, 130 Vt. 136, 139, 287 A.2d 569 (1972). There is no error in the decision of the board on that issue on such findings. Thus, the findings in this Court are to be affirmed even in the presence of substantial evidence to the contrary. Id., 130 Vt. at 141, 287 A.2d 569.

Claimant next contends that she was 'available' for work sufficient to qualify her for unemployment benefits. She says she was forced to leave her last job because she could not afford to have her car fixed and had no transportation to work, and that following this she could not look for work outside of her town for the same reason.

The pertinent part of 21 V.S.A. § 1343(a)(3) reads:

An unemployed individual shall be eligible to receive benefits with respect to any week only if the commissioner finds that: . . . (3) He is able to work, and is available for work; . . ..

The claims examiner found claimant's 'labor market,' that is, the area in which she must be 'available' under § 1343(a)(3) in order to qualify for benefits as being 'all of Franklin County.' This was without any foundation in the evidence, was erroneous and unrealistic. The evidence shows that there was just the one manufacturing employer in Enosburg Falls. Many of the residents of Enosburg Falls went elsewhere to obtain work. There were garment manufacturing establishments in St. Albans, Swanton, and Richford as well as Enosburg Falls. Claimant had worked in the past at Richford and as far away as Burlington. At most the foregoing area could be said to be her labor market but this does not alter her situation.

Claimant insists that she was available for work that she could reach without an automobile. The board concluded on its findings that since she had not sought, or would not accept work she could not reach on foot that is, outside Enosburg Falls, she was not available for work.

In this posture of the case the real question is whether Mrs. Barcomb can limit her labor market to an area which she could only reach on foot or by public transportation. In other words, was Mrs. Barcomb required to provide herself with automobile transportation to work and does the availability to transportation define the labor market? No authority has been cited to us that employers are responsible for providing its employees with transportation to their job site. The appellant does not take this position.

The key element here is the definition of 'labor market.' The concept of a 'labor market' does not appear in the statutes but derives from the language of 21 V.S.A. § 1343, requiring unemployment benefits claimant to be 'available for work.'

The meaning of this phrase was first outlined in Willard v. Unemployment Compensation Commission, 122 Vt. 398, 402, 173 A.2d 843 (1961), and most recently in In Re Dunn, 131 Vt. 261, 305 A.2d 602, 605 (1973). That meaning derives from L. Freeman, Able to Work and Available for Work, 55 Yale L.J. 123, 124 (1965).

These precedents make it clear that in Vermont 'availability,' and hence the applicable 'labor market' in which an applicant must be 'available,' is a function of the individual applicant. An individual must offer his services in a market, and that market must be a sufficient geographical area to provide or encompass employers who use the type of services offered by this applicant.

In the Dunn case this Court found that the proper labor market could be limited to an area within walking distance of applicant's residence. Claimant Dunn there demonstrated that the 'light work' services which he was offering were required in that area but were not available to him. Id., 305 A.2d at 605. Also in Dunn there was public transportation available to jobs outside the geographical area and we specifically held that this did not automatically extend his labor market to include that outside area. Id., 305 A.2d at 606.

Although it has not been phrased exactly this way, it appears that the degree of specialization in the services offered by an applicant affects the geographical size of his labor market. A person holding himself out as available for any 'light work' can restrict the labor market to his home town if he shows that 'light work' is required by employers there.

A person of highly specialized skills must be willing to travel a further distance and accede to a labor market of sufficient grographical area to include employers utilizing those specialized skills.

We said in In Re Potvin, 132 Vt. --, 313 A.2d 25 (1973), that applicants will not be forced to accept less demanding and rewarding jobs than those for which their training qualifies them, if they offer their services in a labor market where those jobs exist, just because such jobs are not immediately open.

The type of work sought and the proximity of demand for those services is far more important in defining the labor market than the presence or absence of automobile transportation, without more. No strict rule can be laid down that an automobile is or is not required in order to be available for work under the Unemployment Compensation laws.

The lack of transportation to work has been viewed as a domestic problem. In Re Prouty, 131 Vt. --, 310 A.2d 12, 15 (1973). Applicants cannot condition availability because of domestic problems, Id., 310 A.2d at least where there are in fact no jobs which could meet those conditions. In Re Platt, 130 Vt. 329, 333, 292 A.2d 822 (1972). We held in Nurmi v. Vermont Employment Security Board, 124 Vt. 42, 47, 197 A.2d 483 (1963), that to be entitled to unemployment compensation, unemployed persons declining work must do so for good cause connected with the work itself rather than on account of personal inconvenience or home problems.

On the evidence presented the board, as trier of the facts, found that claimant was a turner and presser, that there was only one establishment using turners and pressers in Enosburg Falls, that there were others in the area, that claimant had worked outside Enosburg Falls in the past, and that she was not seeking and would not accept work outside Enosburg Falls. There is legitimate evidence which fairly and reasonably supports the findings of the board in this issue of availability for work and will not be disturbed by this Court. In Re Hatch, 130 Vt. 248, 257-258, 290 A.2d 180 (1972). The board's conclusion that claimant...