LaRose v. Department of Employment Sec.

• Decision Date: 30 April 1981
• Docket Number: No. 103-80,103-80
• Citation: 431 A.2d 1240,139 Vt. 513
• Parties: David J. LaROSE, Sr. v. DEPARTMENT OF EMPLOYMENT SECURITY.
• Court: Vermont Supreme Court

Page 1240

431 A.2d 1240

139 Vt. 513

David J. LaROSE, Sr. v. DEPARTMENT OF EMPLOYMENT SECURITY.

No. 103-80.

Supreme Court of Vermont.

April 30, 1981.

Elliot M. Burg, Rutland, Zander B. Rubin and Ronald Westgate and F. J. Constantine, Law Clerks, on briefs, South Royalton Legal Clinic, South Royalton, for plaintiff.

Matthew R. Gould and Nancy E. Smith, Law Clerk, on brief, Montpelier, for defendant.

Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

BARNEY, Chief Justice.

This case involves a decision of the Employment Security Board disqualifying the plaintiff for unemployment benefits. The issue was whether he had left his employment voluntarily, without good cause attributable to his employer. 21 V.S.A. § 1344(a)(2)(A). Both the claims examiner and the appeals referee had previously found against the plaintiff.

The plaintiff was a butter maker at Cabot Farmers Co-op Creamery Company, Inc. He started work in March, 1973, and was hired to work a 45 hour week. After the first few weeks he averaged 72 hours per week, except in the summer when he averaged 50 hours per week. For the last year and a half, he worked as much as 80-95 hours per week.

In June, 1979, the plaintiff took his vacation, even though vacations were ordinarily taken after July 4 since June is part of the busiest time of the year. While he was on vacation, his employer received a very large order requiring a 40% production increase. As a result, the employer hired an additional butter maker and instituted two shifts.

The plaintiff returned from vacation upset at the prospect of a reduction in working hours. He gave his employer one and a half weeks notice. During this time his hours worked averaged about 56-58 hours per week, which represented approximately a 40% reduction in gross wages.

The findings of the Board state that the plaintiff did not, at the time of giving notice, assign the wage reduction as a reason, but stated he was going into the stove wood business. The employer was also found not to have discussed the change in hours with the plaintiff.

The Board went on to conclude that the evidence before it did not demonstrate a legally enforceable contractual arrangement between the plaintiff and the employer in which the plaintiff was to be allowed to work any particular number of overtime hours above his basic 45 hours per week employment. On that basis the Board determined that the employer's unilateral reduction in the number of overtime hours did not give good cause to the plaintiff to terminate his employment voluntarily without being disqualified for unemployment compensation benefits.

The decision was not an easy one, and it divided the Board. Unfortunately, human problems are often both complex and untidy. This case does not come to us with its competing interests crisply stated or neatly compartmented. Rather, its resolution turns more on a weighing of the equities, making it perhaps of small precedential value. Nevertheless, it is the function of this Court to decide the rights of the parties.

To begin with, we find the question of the Board's evaluation of the evidence, hearsay or otherwise, of the asserted failure of the plaintiff to confront his employer with his complaint about his loss of overtime as not critical in this case. The plaintiff was confronted with a new employee with whom his work was to be shared and had been informed of a new reduced hourly schedule. This 40% reduction in wages was either good grounds for quitting, or it wasn't.

We view the length of the overtime and the magnitude of the decrease in salary as crucial in this case. The overtime had become a regular part of the plaintiff's employment over the six years that he had worked. He had grown to rely upon the overtime income to support his family.

Obviously, any change in overtime employment or length of working time is not, per se, going to justify quitting without jeopardy to unemployment compensation. But, in this case, in the face of six years of employment with substantial overtime, to say that an employer can unilaterally reduce the hours back to 45, as contended, or reduce the wages earned by 40%, is just too egregious a change to avoid a finding of "just cause." Even though perhaps not precise enough in terms of doctrines of implied-in-fact contract law to yield exact enforceability as to its terms, having in mind the purposes of the Unemployment Compensation Act it seems clear that six years of employment has built in sufficient modification of the basic employment agreement to support the payment of unemployment compensation benefits as much as it did in Surowick v. Department of Employment Security, 133 Vt. 578, 349 A.2d 905 (1975).

The order of the Employment Security Board is reversed, and the cause is remanded for the computation of benefits.

HILL, Justice, dissenting.

The appellant challenges a Vermont Employment Security Board decision finding him disqualified for unemployment benefits under 21 V.S.A. § 1344(a)(2)(A). In dealing with this claim, the majority rewrites Anglo-American jurisprudence, informing us that "equity precedes the law." With this, quite clearly, I can not agree. The law dictates the proper decision in this case. Further, this Court should not second guess and supersede the Board's informed judgment without a factual basis clearly dictating such action. The majority here even admits that this is a close question. We are not a trial court, and should not impose our biases on the tribunals duly authorized to make such decisions.

The claimant was employed for six years as chief butter maker by Cabot Farmers Co-op Creamery Company. His employment contract called for a 45 hour work week at a rate of $4.40 per hour for 40 hours and $6.60 per hour of overtime. For several years he averaged 72 hours per week, except in the summer months when he worked about 50 hours per week. The appellant worked as much as 80-95 hours per week during the past 11/2 years, although the amount of overtime fluctuated.

The employer, faced with a new order necessitating a 40% increase in butter production during the appellant's vacation in June 1979, hired an additional butter maker and initiated two shifts. There is no evidence that the appellant ever feared he would be forced to work less than the 45 hours guaranteed in his contract. In fact, the two butter makers currently employed average at least 60 hours per week.

Faced with an apparent reduction in work hours, the appellant gave 11/2 weeks notice upon returning from vacation that he was quitting his job. During the notice period, he worked approximately 56-58 hours per week. The majority opinion flatly concludes that this constitutes a 40% reduction in gross wages. I am unable to understand such mathematics in view of the record's clear indication that claimant's hours vastly fluctuated over the term of his employment. The Board also found that the appellant did not notify his employer that he was leaving as a result of the anticipated reduction in work hours. Although that finding is challenged, it is irrelevant to this decision.

The appellant claims that the unilateral reduction in the number of overtime hours provided the requisite good...