Harrington v. Department of Employment Sec., 334-81

• Decision Date: 14 December 1982
• Docket Number: No. 334-81,334-81
• Citation: 142 Vt. 340,455 A.2d 333
• Court: Vermont Supreme Court
• Parties: Debra Lea HARRINGTON v. DEPARTMENT OF EMPLOYMENT SECURITY and First National Supermarkets, Inc.

Page 333

455 A.2d 333

142 Vt. 340

Debra Lea HARRINGTON v. DEPARTMENT OF EMPLOYMENT SECURITY and First National Supermarkets, Inc.

No. 334-81.

Supreme Court of Vermont.

Dec. 14, 1982.

Fred I. Parker and Ellen Mercer Fallon of Langrock Sperry Parker & Stahl, Middlebury, for defendant-appellant.

Matthew R. Gould, Montpelier, for defendant-appellee.

Before BARNEY, C.J., BILLINGS, HILL and PECK, JJ., and DALEY, J. (Ret.), Specially Assigned.

HILL, Justice.

This is an appeal from a decision by the Vermont Employment Security Board (the Board) granting claimant unemployment compensation benefits. Following the Board's decision, the employer, First National Supermarkets, Inc., filed a timely notice of appeal. We affirm.

The facts, as found by the Board, are as follows. From about September 1, 1979, through October 18, 1980, claimant was employed as a part-time clerk for First National Supermarkets. During the first twelve months of her employment, her duties consisted of operating the cash register and working in the employer's office. Prior to September, 1980, there is no indication in the record of any problems with claimant's job performance.

During the early part of September, 1980, claimant took a one week vacation with her parents in California. While in California, she contacted her immediate supervisor at work regarding the possibility of a one week extension of her vacation. Although there was some confusion as to whether claimant was requesting or demanding the extra week, her supervisor nonetheless granted the extension. Believing that claimant could no longer be relied upon, her supervisor and the store manager decided after consultation to temporarily suspend claimant. Instead, upon the claimant's return from California, the store manager attempted to fire her. Claimant immediately contacted the regional store supervisor to discuss the situation. As a result of this conversation, the regional supervisor ordered her reinstatement.

Thereafter, the nature of claimant's working conditions changed dramatically. She was assigned to new duties which she did not like and which were not entirely suited to her physical stature. In addition, despite the employer's assertions to the contrary, the Board found that claimant was required to work split shifts in direct violation of her union contract. Furthermore, claimant's schedule was altered so that she was now required to work more days with shorter hours, a change which clearly interfered with her commuting situation. Finally, claimant had received word from several co-workers that the store manager was making derogatory remarks about her and her family in public.

As a result, on October 18, 1980, claimant informed the store manager that she was resigning due to intolerable working conditions. Claimant was denied unemployment compensation benefits, both in her initial application as well as at the subsequent referee hearing. However, after reviewing the record established at the referee hearing, the Board concluded that the above incidents, taken together and placed within the context of the store manager's unsuccessful attempt to fire claimant, constituted good cause attributable to the employer (thus avoiding the disqualification imposed by 21 V.S.A. § 1344(a)(2)(A)). Accordingly, since claimant had demonstrated good cause for leaving rather than continuing her employment, the Board reversed the earlier denial of benefits.

On appeal, the employer briefs several exceptions for our consideration. The employer's first contention is that the Board, in direct contravention of its own rules, accepted and in at least three instances considered new evidence at the Board hearing. The first relates to claimant's allegation that her employer was refusing to give her fair references for future employment; the second relates to claimant's assertion, not articulated at the referee hearing below, that the store manager had called her and her mother names in their presence; and the third relates to claimant's use of the words "listen babe" to supplement a statement allegedly made by the store manager which appeared in the referee hearing record.

When reviewing a referee's decision on appeal, the Board has the power to affirm, modify or reverse the decision. Whitchurch v. Department of Employment Security, 139 Vt. 566, 568, 433 A.2d 284, 286 (1981); Kaufman v. Department of Employment Security, 136 Vt. 72, 74, 385 A.2d 1080, 1082 (1978). When dealing with allegations relating to new evidence, and "[w]here the tribunal itself declares that statements given before it were not used in preparing findings, this Court will presume no use was made, unless the contrary is demonstrated." State Highway Board v. Loomis, 122 Vt. 125, 127, 165 A.2d 572, 574 (1960) (citing Bloomstrand v. Stevens, 104 Vt. 1, 4, 156 A. 414, 415 (1931)).

A review of the record in the instant case reveals that the Board, shortly after claimant voiced her suspicions concerning the allegedly unfair references, warned claimant that its review was limited to the referee hearing record. Moreover, the alleged new evidence was never incorporated into the Board's final findings of fact and conclusions of law. As a result, we also find claimant's allegation to the Board of name calling in her presence, which differed from the record below in that she had formerly testified that she had learned of such conduct from third parties, to be harmless in nature. Id.

With regard to claimant's use of the words "listen babe," the record reveals that at most it amounted to a mere embellishment of testimony already in the record. In situations such as this, where a claimant is not represented by counsel, we are confident that the Board is fully capable of ignoring such embellishments.

The employer next asserts that the Board's findings of fact are unsupported by credible evidence and that its conclusions of law are not supported by the findings of fact. When reviewing a Board decision, "[t]his Court must determine whether the evidence before the Board reasonably tends to support its findings and whether the findings in turn support the Board's conclusions and decisions." Spaulding v. Department of Employment Security, 139 Vt. 562, 564-65, 433 A.2d 269, 270 (1981) (citing Przekaza v. Department of Employment Security, 136 Vt. 355, 356, 392 A.2d 421, 422 (1978)); Hamilton v. Department of Employment Security, 139 Vt. 326, 328, 428 A.2d 1108, 1109 (1981). In ascertaining the sufficiency of the findings, we will construe the record in a manner most favorable to the...