Gillig v. Director of Div. of Employment Sec.

• Decision Date: 15 June 1983
• Citation: 389 Mass. 483,450 N.E.2d 622
• Parties: J.P. GILLIG v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 622

450 N.E.2d 622

389 Mass. 483

J.P. GILLIG v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.¹

Supreme Judicial Court of Massachusetts Norfolk.

Submitted Feb. 8, 1983.

Decided June 15, 1983.

Michael S. Bearse, Boston, for plaintiff, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

ABRAMS, Justice.

This appeal challenges the decision of the board of review (board) of the Division of Employment Security, granting unemployment benefits to the claimant, Kathleen Devine. The decision was affirmed by a judge of the District Court. Pursuant to G.L. c. 151A, § 42, this case came here for direct review with a report from that judge. We reverse.

We summarize the facts as found by the board. ² The claimant was employed by J.P. Gillig (employer) as a management trainee from December 23, 1979, through February 10, 1980. During that time, she earned $200 a week based on fifty hours of work. As a management trainee, one of the conditions of her employment was "to be available at all times for all shifts." The job's early shift begins at 5 A.M. The claimant had expressed her reluctance to work the early shift, although she had done so on occasion.

In early 1980, the employer closed one of his restaurants, and consolidated the management trainees at another restaurant. ³ The employer was also forced to reduce the management staff and to ensure that all the trainees would be available for all shifts. Because the claimant stated her dislike of working at the early hour at which the early shift begins, her job was terminated. The board adopted the director's finding that the claimant's "unwillingness to [begin work early] was a matter of preference and the claimant could have continued in employment if she had been willing to work the early shift."

After a hearing, the director decided that the claimant had left work voluntarily and without compelling reasons or "good cause attributable to the employing unit," as required by G.L. c. 151A, § 25(e)(1). The Director therefore denied benefits.

The board reversed that decision, finding as a matter of law that the early shift was "unsuitable" employment within the meaning of G.L. c. 151A, § 25(c)(4), as amended through St.1968, c. 323, § 5, which states in pertinent part: "No work shall be deemed suitable, and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: ... (4) If in the case of a female the acceptance of such work would require her to work between the hours of twelve midnight and six o'clock ante meridian." ⁴ Thus, the board determined that her refusal of work and voluntary leaving was with good cause attributable to the employing unit. The board found her to be "entitled to benefits if otherwise eligible."

When the employer applied to the District Court for judicial review of the board's decision, the judge determined that the employer had no standing to challenge the validity of G.L. c. 151A, § 25(c)(4), on the ground that it constitutes unlawful sex discrimination, because the employer did not suffer such discrimination. In its appeal to this court, the employer asserts that he has standing as a "person aggrieved" by the decision; that G.L. c. 151A, § 25(c)(4) applies only if "new work" was offered to the claimant, a fact not supported by the record; and that § 25(c)(4) is invalid and unenforceable as a disparate employment condition based on sex. We conclude that no new work was involved, and therefore it was error to award the claimant benefits. ⁵ Thus we do not reach the other issues raised by the employer.

General Laws c. 151A, § 25(c), denies unemployment benefits to those employees who fail "without good cause, to apply for suitable employment." Suitable employment is assessed by taking into consideration various statutory criteria, as well as all of the attendant circumstances. See Graves v. Director of the Div. of Employment Sec., 384 Mass. 766, 429 N.E.2d 705 (1981); Pacific Mills v. Director of the Div. of Employment Sec., 322 Mass. 345, 350, 77 N.E.2d 413 (1948). Section 25(c) goes on to state that "benefits shall not be denied ... for refusing to accept new work" in four statutorily defined categories of jobs which are to be considered per se unsuitable for that purpose.

In this case, the board determined that the work offered to the claimant was unsuitable under G.L. c. 151A, § 25(c)(4). In so doing, the board ignored the statutory requirement that "new work" must be involved in order for that section of the statute to be applied. "It is a well established principle of statutory interpretation that '[n]one of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute, so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature.' " Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618, 227 N.E.2d 357 (1967), quoting Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85, 64 N.E.2d 645 (1946).

The board failed to apply this principle, and gave no meaning to the words "new work." Since the Legislature has mandated that "new work" is essential for the application of G.L. c. 151A, § 25(c)(4), the board erred in granting benefits, disregarding that requirement. Further, this construction brings our statute into compliance with Federal law, which prohibits States from denying benefits to "any otherwise eligible individual for refusing to accept new work" in similar situations. 26 U.S.C. § 3304(a)(5) (1976). ⁶ In addition, other States with similar statutes have determined "new work" to be an essential condition for application of the rule. See Campos v. California Employment Dev. Dep't, 132 Cal.App.3d 961, 183 Cal.Rptr. 637 (1982); Anderson v. Top O'Michigan Rural Elec. Co., 118 Mich.App. 275, 282-283, 324 N.W.2d 603 (1982); Cointreau, Ltd. v. Board of Review, 171 N.J.Super. 407, 411, 409 A.2d 811 (1979); Texas Employment Comm'n v. E-Systems, Inc., 540 S.W.2d 761 (Tex.Civ.App.1976). ⁷

In this case before us, the board found, and it is undisputed, that the shift declined by the claimant was a shift which she was required to be available to work, and which she had worked in the past. Since work on that shift was a true condition of her employment, the change in shifts was not an offer of new work, as required for the automatic application of...