Kuhn v. Department of Employment Sec., 291-75

• Decision Date: 06 April 1976
• Docket Number: No. 291-75,291-75
• Citation: 357 A.2d 534,134 Vt. 292
• Court: Vermont Supreme Court
• Parties: Richard KUHN v. DEPARTMENT OF EMPLOYMENT SECURITY.

Page 534

357 A.2d 534

134 Vt. 292

Richard KUHN v. DEPARTMENT OF EMPLOYMENT SECURITY.

No. 291-75.

Supreme Court of Vermont.

April 6, 1976.

Zander B. Rubin, Vermont Legal Aid, Inc., St. Johnsbury, for claimant.

Bernasconi & Koch, Barre, for employer.

Raymond S. Fitzpatrick, Montpelier, for Dept. of Employment Security.

Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.

LARROW, Justice.

This is an appeal, taken by the employer, from a decision of the Employment Security Board awarding unemployment compensation benefits to the claimant Richard Kuhn. The Board's decision reversed prior rulings of the claims examiner and of the referee holding claimant disqualified because of misconduct connected with his work under 21 V.S.A. § 1344(a)(1).

At the outset, we will treat of appellant's claim, raised here for the first time, that the claimant should be disqualified from benefits because he violated 21 V.S.A. § 1344(a)(2)(A) by leaving his employment voluntarily without good cause attributable to his employing unit. The Board found, upon ample evidence, that the claimant's employment was terminated, which we can only interpret as a firing rather than a quit. Beyond that, however, we have long adhered to the general rule that points not made or urged below will not be considered for the first time on appeal. LaFountain v. Vermont Employment Security Board, 133 Vt. 42, 48, 330 A.2d 468 (1974). This claim of error cannot be sustained.

The facts found by the Board are not disputed, and are somewhat unique. Appellant claims that upon these facts a finding of misconduct is mandated. The Board, correctly viewing such finding as a disqualification needing affirmative establishment, concluded that it was unable to so find, and ruled with the claimant.

Claimant's last employment was with Rinker's Incorporated as assistant manager of a filling station. This employment was terminated June 13, 1975. In the fall of 1974, to increase business, the employer requested all his employees to get a Vermont motor vehicle inspector's license. This requires passing a state examination, which claimant had already taken twice and failed to pass. In May, 1975, the employees were given two weeks to comply or be discharged. A two week extension of this time was granted to some other employees. Claimant refused to take the examination, based on his belief that he was not qualified to be a motor vehicle inspector and that he did not want to accept the responsibility or liability for certifying motor vehicles safe for highway operation. As a result of his decision, his employment was terminated.

Appellant concedes the general tenor of our prior holdings to be that misconduct must be affirmatively shown, and that it involves a 'substantial disregard of the employer's interest, either wilful or culpably negligent.' In re Therrien, 132 Vt. 535, 537, 325 A.2d 357, 358 (1974). By arguing for reversal, appellant in effect says that we should substitute our own conclusions for those of the Board, because they are not supported by its findings. In re Therrien, supra. Put otherwise, the argument is that a conclusion of misconduct is mandated by the Board's findings. We cannot agree.

As we pointed out in Therrien, there is a clearcut distinction between conduct which may be legitimate grounds for discharge and that which constitutes misconduct. The distinction is an essential one. Misconduct is grounds for discharge, but there...