Manias v. Director of Div. of Employment Sec.

• Citation: 388 Mass. 201,445 N.E.2d 1068
• Parties: Angeliki MANIAS v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1
• Decision Date: 16 February 1983
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1068

445 N.E.2d 1068

388 Mass. 201

Angeliki MANIAS v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 5, 1982.

Decided Feb. 16, 1983.

Paul R. Collier, III, Boston, for plaintiff.

George J. Mahanna, Asst. Atty. Gen., for Director of the Div. of Employment Sec.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

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

We summarize the review examiner's findings of fact. ² The claimant was employed by a Boston restaurant as a laundry worker for approximately one year prior to March 31, 1978. For a brief period the claimant worked from 10 A.M. to 7 or 8 P.M. The claimant's work schedule was then changed to 7 A.M. to 7 P.M., which included a great deal of overtime. The restaurant began to reduce the claimant's work schedule, so that by March, 1978, her hours had been shifted to 11 A.M. to 6 or 7 P.M. The claimant was requested to work until 8 or 9 P.M., but she objected because the extra hours interfered with her family and homemaking obligations. ³

The review examiner determined that the claimant left work because her request for a change in the schedule was denied. The review examiner concluded that "the claimant's request was not for an urgent, compelling, nor necessitous reason but was based on personal reasons, [and that] such leaving is voluntary without good cause attributable to the employing unit within the meaning of Section 25(e)(1) of the Law." The claimant appealed.

Manias claims that her leaving was for "good cause attributable to the employing unit," because the new hours resulted in a substantial wage reduction and because her family obligations required her to reject the employment. She contends that her reasons were urgent, compelling, and necessitous. Hence, she argues, it was error to deny her unemployment benefits.

Where the basis of employment includes "the guarantee of overtime ... an employee can leave his job with good cause [attributable to the employing unit] when the employer eliminates his overtime." Tombigbee Lightweight Aggregate Corp. v. Roberts, 351 So.2d 1388, 1390 (Ala.Civ.App.1977). See Ship Inn, Inc. v. Unemployment Compensation Bd. of Review, 50 Pa.Commw. 292, 295, 412 A.2d 913 (1980).

"An employer cannot defeat the payment of unemployment benefits by offering to [alter hours and then] reemploy claimants at sharply reduced wages. A substantial decline in wages may render a worker's job unsuitable," and may be viewed as good cause for leaving employment. Graves v. Director of the Div. of Employment Sec., --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 2405, 2406-2407, 429 N.E.2d 705. "Any other result would, in our opinion, sanction a situation whereunder the employer could entirely foreclose the employee's right to benefits by the simple expedient of reducing the employee's wages to near benefit level instead of discharging or releasing the employee outright thereby at one and the same time compelling his resignation and rendering him ineligible for the benefits provided for in the act." Robertson v. Brown, 139 So.2d 226, 229 (La.App.1962). Cf. President & Fellows of Harvard College v. Director of the Div. of Employment Sec., 376 Mass. 551, 556, 382 N.E.2d 195 (1978) (full-time workers entitled to reject offered part-time work as unsuitable under G.L. c. 151A, § 25[c ], which resulted in a thirty per cent or more reduction in hours and wages); Graves v. Director of the Div. of Employment Sec., 384 Mass. 766, --- n. 2, Mass.Adv.Sh. (1981) 2405, 2406 n. 2, 429 N.E.2d 705 (forty per cent reduction in wages for piece work prior to layoff could render recall an offer of unsuitable employment).

In order to demonstrate the requisite "good cause attributable to the employing unit," under G.L. c. 151A, § 25(e )(1), Manias must prove that her employer's reduction of her hours, including accustomed overtime, resulted in a substantial wage reduction. "The burden of proof as to all aspects of eligibility for unemployment benefits, including the burden of establishing good cause, rests with the worker." Sohler v. Director of the Div. of Employment Sec., 377 Mass. 785, 788 n. 1, 388 N.E.2d 299 (1979). The review examiner did not make any findings on Manias's claim that her accustomed wages were substantially reduced by the change in hours, ⁴ thereby giving her good cause to leave her job. We conclude that the failure to consider Manias's claim of good cause was an error of law.

Relying on Conlon v. Director of the Div. of Employment Sec., 382 Mass. 19, 413 N.E.2d 727 (1980), Manias also asserts that her leaving was involuntary because the new hours did not permit her to meet her child care and family responsibilities. ⁵ A claimant is entitled to unemployment compensation under G.L. c. 151A, § 24(b ), even though he or she restricts his or her availability for work to certain specific times, due to child care and domestic responsibilities. Id.

Conlon did not address the question whether child care demands could constitute urgent and compelling reasons for leaving a job, rendering an employee's resignation involuntary under § 25(e )(1). However, we have said that "a person who is forced to leave work because of compelling personal circumstances has left work involuntarily and is not subject to temporary disqualification under G.L. c. 151A, § 25(e )(1)." Dohoney v. Director of the Div. of Employment Sec., 377 Mass. 333, 335, 386 N.E.2d 10 (1979). Director of the Div. of Employment Sec. v. Fingerman, 378 Mass. 461, 463-464, 392 N.E.2d 846 (1979). Since domestic responsibilities can entitle a claimant to reject certain employment situations as unacceptable and restrict her work availability under § 24(b ), we conclude that those same responsibilities also may constitute urgent and compelling reasons which make a resignation involuntary under G.L. c. 151A, § 25(e )(1). See Conlon, 382 Mass. at ---, 413 N.E.2d 727 supra. ⁶

There was evidence which, if believed, could support Manias's claims. However, the review examiner did not make any subsidiary findings of fact on either issue. "Whether this evidence was credible ... was for the review examiner, and not for this court, to determine. But since he made no findings on this point, '[o]n the record before us, we cannot determine whether the [examiner] disbelieved those portions of the evidence on which no subsidiary findings were made, or believed them but considered them not determinative of the ultimate issue.' " Smith v. Director of the Div. of Employment Sec., 376 Mass. 563, 565-566, 382 N.E.2d 199 (1978), quoting Maryland...