Davis v. Gatson

• Decision Date: 17 November 1995
• Docket Number: No. 22859,22859
• Citation: 195 W.Va. 143,464 S.E.2d 785
• Court: West Virginia Supreme Court
• Parties: Ronald DAVIS, et al., Petitioners, v. Cathy S. GATSON, Clerk of the Circuit Court of Kanawha County; the Board of Review of the West Virginia Department of Employment Security; and Corhart Refractories Corporation, Respondents.

Page 785

464 S.E.2d 785

195 W.Va. 143

Ronald DAVIS, et al., Petitioners, v.Cathy S. GATSON, Clerk of the Circuit Court of Kanawha County; the Board of Review of the West Virginia Department of Employment Security; and Corhart Refractories Corporation, Respondents.

No. 22859.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1995.

Decided Nov. 17, 1995.

[195 W.Va. 144] Syllabus by the Court

1."The findings of fact of the Board of Review of the West Virginia Department of Employment Security are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong.If the question on review is one purely of law, no deference is given and the standard of judicial review by the court is de novo."Syl. pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395(1994).

2."Unemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof."Syl. pt. 6, Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404(1954).

3.An unemployed individual shall be eligible to receive benefits only if the Commissioner finds, inter alia, that he has been totally or partially unemployed during his benefit year for a waiting period of one week prior to the week for which he claims benefits for total or partial unemployment, under W.Va.Code, 21A-6-1(4)[1994].The terms total and partial unemployment are defined in W.Va.Code, 21A-1-3[1994].However, under the definition of wages found in W.Va.Code, 21A-1-3[1994], the term wages shall not include vacation pay received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed, provided that the term totally or partially unemployed shall not be interpreted to include employees who are on vacation by reason of the employer's request provided they are unequivocally so informed at least ninety days prior to such vacation.

J. Robert Weaver, Thomas P. Maroney, Charleston, for Petitioners.

John R. Merinar, Jr., Steptoe & Johnson, Clarksburg, for Corhart Refractories Corp.

McHUGH, Chief Justice:

This is a petition for a writ of certiorari, ¹ in which twenty-two employees seek unemployment compensation benefits for a two-week period in August of 1992 during which their employer shut down its facility.Though the Board of Review of the West Virginia Bureau of Employment Programs had determined that, under W.Va.Code, 21A-1-3[1991], the employees were entitled to such benefits because the employer failed to give unequivocal notice of the planned shutdown within ninety days thereof, the Circuit Court of Kanawha County reversed, ruling that W.Va.Code, 21A-1-3[1991] does not require such notice to be unequivocal and that the employees were sufficiently informed of the planned shutdown.This Court has before it the petition, all matters of record and the briefs and arguments of counsel.For the reasons stated below, the order of the circuit court is reversed.

I.

The following relevant events, which, for the most part, are undisputed, occurred prior to the planned two-week shutdown of the Buckhannon, West Virginia facility of respondentCorhart Refractories Corp.(hereinafter "Corhart").On March 5, 1992, a labor-management meeting was held where, as the minutes of the meeting reflect, plant manager Jim Zalaznik commented upon the possibility of a planned plant shutdown: "We are starting to plan a shutdown for this summer because of the sales forecast.I want to discuss it early so people can be planning ahead.The exact timing isn't set yet, but it is definitely after school is out."Two months later, on May 7, 1992, another labor-management meeting took place and, according to the minutes of that meeting, the following relevant comments were made by Mr. Zalaznik:

The order backlog is very low.There are only a couple of weeks of forming an Isopress and Special Materials.Corning France is the only order even available now.The Russian order is still being discussed but there are no promises.If something isn't received soon, we face some kind of layoff.A shutdown is being planned in August.²

(footnote added).

The following week, Corhart posted its first announcement of a planned shutdown ³.The notice read, in relevant part:

NOTICE

Summer Shutdown

Announcement

Please plan on a two week total plant production shutdown August 10-August 23.Plan to take vacation during that time unless your supervisor and the Plant Manager approve an exception.Some administrative areas may need to work.Also, a skeleton security staff will be maintained in the plant.

If orders are received, you will be immediately notified of cancellation of the shutdown.

When it was subsequently determined that the shutdown should occur one week later than was originally stated in the first shutdown announcement, the following revised announcement was posted on May 15, 1992, approximately ninety days prior to the planned shutdown:

NOTICE

Revised

Summer Shutdown

Announcement

Due to the ship date of the Corning France order, the shutdown has been delayed one week.Please plan on a two week total plant production shutdown August 17--August 30.Plan to take vacation during that time unless your supervisor and the Plant Manager approve an exception.Some administrative areas may need to work.Also, a skeleton security staff will be maintained in the plant.

If orders are received, you will be immediately notified of cancellation of the shutdown.

According to the minutes of the labor-management meeting held on July 1, 1992, the status of the planned shutdown was again discussed:

The quote activity has been heavy, so we have some chances for orders.We did receive a Central Glass Fiber order and hope to receive an Iwaki and Oschatz, Poland order.We also look for an OCF order for late in the year.However, all of these orders only add up to the disappointing $17 million forecast for 1992.Any fall out from these would be a drop from this number.It is difficult to forecast any substantial changes in manpower until I get more information on these orders.It's possible that the shutdown could be cancelled if these orders are received, but I can't plan without the details.⁴

(emphasis and footnote added.)

Finally, on July 27, 1992, Corhart posted the following notice of shutdown and, in addition, the following shutdown policy:

NOTICE

The scheduled shutdown is firm now that the orders we were waiting for have arrived and been evaluated.They do not require enough production to prevent the shutdown.

Additional details about shutdown procedures will be available soon.If you have any immediate questions about the shutdown, please see your supervisor.

SHUTDOWN POLICY

During the planned two week shutdown, starting August 17, 1992, all hourly employees will be required to take vacation.

If an employee does not have enough vacation time to cover the shutdown, they will be required to take whatever vacation time they have and be placed on layoff for the remainder of the two week period.

Employees who wish to take time off later in the year and have exhausted their vacation, may, if their Supervisor agrees, take a leave of absence without pay.

A few employees may be required to work as needed.

If you have any questions concerning this policy or unemployment benefits, please see Mike Pasternak.

According to Corhart, because it had received a decreased number of orders, it had urged its employees to take vacation earlier that summer in an effort to avoid a shutdown.⁵The petitioners herein are twenty-two hourly employees who chose not to take vacation until the shutdown period in August.Consequently, they had sufficient vacation accrued to cover the entire two-week shutdown period.⁶The petitioners(hereinafter "claimants") subsequently applied for unemployment compensation benefits for the two-week shutdown period with the West Virginia Department of Employment Security(hereinafter "DES").

DES Deputy Pat Pingley found that claimants were eligible for unemployment compensation benefits because they were partially unemployed during the two-week shutdown period.SeeW.Va.Code, 21A-6-1(4)[1987]("[a]n unemployed individual shall be eligible to receive benefits only if the commissioner finds [inter alia,] that ...(4)He has been totally or partially unemployed during his benefit year for a waiting period of one week prior to the week for which he claims benefits for total or partial unemployment");W.Va.Code, 21A-1-3[1991](" '[P]artial unemployment' means: ... [a]n individual who has not been separated from employment is partially unemployed in any week in which due to lack of full-time work wages payable to him are less than his weekly benefit amount plus twenty-five dollars: Provided, That said individual must have earnings of at least twenty-six dollars.")⁷However, Deputy Pingley found claimants to be disqualified ⁸ for benefits under W.Va.Code, 21A-1-3[1991], which states in relevant part:

the term 'wages' does not include: ...(10) Vacation pay ... received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed: Provided, That the term totally or partially unemployed shall not be interpreted to include ... (B) employees who are on vacation by reason of the employer's request provided they are so informed at least ninety days prior to such vacation[.]

Deputy Pingley concluded that the May 15, 1992 notice of shutdown posted by Corhart sufficiently informed the claimants of the shutdown within ninety days thereof and that, consequently, they were disqualified from benefits for the two-week shutdown period because their wages exceeded their weekly benefit amount by twenty-five dollars or more.⁹SeeW.Va.Code, 21A-1-3[1991](defining partial unemployment).

The claimants appealed Deputy Pingley's decision to the Board of Review of...