Murray v. Rutledge

• Decision Date: 01 March 1985
• Docket Number: No. 16352,16352
• Citation: 327 S.E.2d 403,174 W.Va. 423
• Parties: Fern A. MURRAY v. Phyllis J. RUTLEDGE, Clerk of the Circuit Court of Kanawha County; Board of Review of the West Virginia Department of Employment Security, J.F. McClanahan, as Chairman, C.C. Elmore, Jr., and Gregory E. Elliott, as Members; Nile Hughes, as Commissioner; and Marco's Pizza.
• Court: West Virginia Supreme Court

Page 403

327 S.E.2d 403

174 W.Va. 423

Fern A. MURRAY v. Phyllis J. RUTLEDGE, Clerk of the Circuit Court of Kanawha County; Board of Review of the West Virginia Department of Employment Security, J.F. McClanahan, as Chairman, C.C Elmore, Jr., and Gregory E. Elliott, as Members; Nile Hughes, as Commissioner; and Marco's Pizza.

No. 16352.

Supreme Court of Appeals of West Virginia March 1, 1985.

Syllabus by the Court

1. "Customary working conditions not involving deceit or other wrongful conduct on the part of the employer are not a sufficient reason for an employee to leave his most recent work voluntarily...." Syl., Amherst Coal Co. v. Hix, 128 W.Va. 119, 35 S.E.2d 733 (1945).

2. Misrepresentations concerning the terms of employment or substantial unilateral changes in the terms of employment furnish "good cause involving fault on the part of the employer" which justify employee termination of employment and preclude disqualification from the receipt of unemployment compensation benefits.

Garry G. Geffert, W.Va. Legal Services Plan, Inc., Martinsburg, Joseph P. Henry, W.Va. Legal Services Plan, Inc., Charleston, for petitioner.

No appearance for respondents.

McGRAW, Justice:

The appellant, Fern A. Murray, appeals from a final order of the Circuit Court of Kanawha County which affirmed a decision of the West Virginia Department of Employment Security Board of Review disqualifying her from receiving unemployment compensation benefits based upon a finding that she voluntarily quit her last employment without good cause involving fault on the part of her employer. The appellant asserts that a substantial change in her working conditions justified her resignation. We agree and reverse the order of the circuit court.

The appellant was employed as manager of Marco's Pizza on February 11, 1982, at a salary of one hundred dollars per week, regardless of the number of hours worked. The appellant testified at a hearing before a Department of Employment Security administrative law judge that, "[t]here might be some weeks when I had to work two hours--there might be some weeks when I would have to work sixty." She further testified that she was promised bonuses of two to three hundred dollars per month. When she inquired concerning her failure to receive a bonus at the end of her first month, however, she was told, "there was no profit and no bonus." Apparently, the pizzeria never turned a profit, because the appellant never received a bonus. Initially, the appellant's primary duties as manager of this new pizzeria involved training kitchen employees. After this initial training program was completed, however, the appellant was to devote her time exclusively to her other managerial duties.

For the first three months of her employment, the appellant worked in the kitchen, training the kitchen staff. For the next three months, the appellant devoted most of her time to her other managerial duties, such as supervision, bookkeeping, and inventory control. In September 1982, however, the appellant was informed that she was to return to the kitchen as a food preparer and counter person, and that she was expected to continue to perform all of her other managerial responsibilities in addition to her new duties in the kitchen. She testified that one of the owners informed her that "the two girls that I had working in the kitchen at that time were too slow [and] that the business was losing money because of it."

When the appellant confronted the co-owners of the pizzeria on October 7, 1982, with her complaints concerning her change in working conditions, she testified that they responded that they could not afford to employ additional kitchen staff, and that if she was dissatisfied with the change, she should do what she felt she had to do. On October 9, 1982, she informed one of the owners that she was quitting. She testified that I told him, that I wasn't hired to work in the kitchen. I was hired to be his Manager. I had enough responsibility as being his Manager without having to work the kitchen too. I put in about sixty hours a week working for him and I was responsible for 118 hours of work. When somebody called it was me that ran.

She further testified that, "[h]e just looked up at me and said--let's not talk about it now.... And I never did get to talk to him again." On October 11, 1982, the appellant informed the other owner that she was quitting effective immediately. His response was to leave the premises. The appellant then proceeded to process an incoming shipment, secure the premises, lock the building, and leave at approximately 10:00 a.m. as additional help was not scheduled to arrive until 6:00 p.m.

On November 19, 1982, a deputy with the Department of Employment Security issued a decision disqualifying the appellant from receiving benefits indefinitely because "the claimant left work voluntarily without fault on the part of her employer." On January 12, 1983, an administrative law judge, after hearing the testimony of the appellant and three of her corroborating witnesses, totally ignoring the issue of change in working conditions, held that because the claimant continued to work after two unrelated disputes over salary and vacation pay, "The reason or necessity for the termination of this employer-employee relationship is the result of the sole decision of the claimant and does not involve any fault on the part of the employer...." The Department of Employment Security Board of Review affirmed the administrative law judge's decision on May 23, 1983, adopting his findings in their entirety. On March 14, 1984, the circuit court affirmed the Board of Review's disqualification without discussion.

West Virginia Code § 21A-6-3(1) (Supp.1984) provides that, "an individual shall be disqualified for benefits ... [f]or the week in which he left his most recent work voluntarily without good cause involving fault on the part of the employer and until the individual returns to covered employment and has been employed in covered employment at least thirty working days." Furthermore, West Virginia Code § 21A-6A-1(12)(G) (Supp.1984), governing extended unemployment compensation benefits, provides that, "An individual shall not be eligible to receive extended benefits with respect to any week of unemployment in his eligibility period if such individual has been disqualified for regular benefits under this chapter because he or she voluntarily left work...."

The sole issue in the instant proceeding is whether the change in appellant's working conditions was "good cause involving fault on the part of the employer" under West Virginia Code § 21A-6-3(1) (Supp.1984), justifying her resignation. In the single Syllabus of Amherst Coal Co. v. Hix, 128 W.Va. 119, 35 S.E.2d 733 (1945), this Court stated the general rule that, "Customary working conditions not involving deceit or other wrongful conduct on the part of the employer are not a sufficient reason for an employee to leave his most recent work voluntarily...." See also Parish v. Brown, 163 So.2d 860, 861-62 (La.App.1964); Sage Club, Inc. v. Employment Security Commission, 601 P.2d 1306, 1310 (Wyo.1979); 76 Am.Jur.2d Unemployment Compensation § 59, at 956 (1975); 81 C.J.S. Social Security § 233, at 464 (1977). Conversely, misrepresentations concerning the terms of employment or substantial unilateral changes in the terms of employment furnish "good cause involving fault on the part of the employer" which justify employee termination of employment and preclude disqualification from the receipt of unemployment compensation benefits. See Warburton v. Industrial Commission, 678 P.2d 1076, 1077 (Colo.Ct.App.1984) (statute); Davis v. Board of Review, 125 Ill.App.3d 67, 72, 465 N.E.2d 576, 580 (1984); Quillen v. Review Board, 468 N.E.2d 238, 241-42 (Ind.Ct.App.1984); Forrest Park Sanitarium v. Miller, 233 Iowa 1341, 1343, 11 N.W.2d 582, 583 (1943); Nichols v. Kentucky Unemployment Insurance Commission, 677 S.W.2d 317, 321 (Ky.Ct.App.1984); McGinnis v. Moreau, 149 So.2d 188, 190 (La.Ct.App.1963); Smith v. Maine Employment Security Commission, 456 A.2d 2, 5 (Me.1983); Rutten v. Rockie International, Inc., 349 N.W.2d 334, 336 (Minn.Ct.App.1984); Glionna v. Chizek, 204 Neb. 37, 41, 281 N.W.2d 220, 223 (1979); Burke v. Ross, 53 A.D.2d 946, 946, 385 N.Y.S.2d 416, 417 (1976); Syl., Krzkston v. Industrial Commission, 52 Ohio App.2d 109, 368 N.E.2d 74 (1977); Naylon v. Unemployment Compensation Board of Review, 477 A.2d 912, 913 (Pa.Commw.Ct.1984); Cowles Publishing Co. v. Employment Security Department, 15 Wash.App. 590, 594, 550 P.2d 712, 715-16 (1976).

The types of circumstances justifying employee termination of employment in response to misrepresentations concerning the terms of employment or to substantial unilateral changes in the terms of employment necessarily vary. In Nichols v. Kentucky Unemployment Insurance Commission, 677 S.W.2d 318-19, the court described one of the more extreme examples of substantial unilateral changes justifying resignation:

The appellant, Charles H. Nichols, was first employed by the appellee, Sweet Hollow, Inc., sometime in late 1981. At that time, the appellant agreed to work forty hours per week with his principal duties being the performance of carpentry and general maintenance activities. The appellant's starting salary was originally set at $125.00 per week, but upon the receipt of his initial paycheck, he learned that his employer had unilaterally reduced this amount by $25.00. Although he immediately questioned this alteration, the appellant subsequently accepted the appellee's explanation that no additional funds to pay him were available and continued on in his work without voicing any additional complaints in this regard.

The resignation of one of his coworkers, who had served as night watchman, approximately two or three weeks later, resulted in further modifications in the appellant's employment contract, when he agreed...