Pfenning v. Department of Employment and Training, 87-397

• Decision Date: 27 January 1989
• Docket Number: No. 87-397,87-397
• Citation: 557 A.2d 897,151 Vt. 50
• Parties: Wayne E. PFENNING v. DEPARTMENT OF EMPLOYMENT AND TRAINING.
• Court: Vermont Supreme Court

Page 897

557 A.2d 897

151 Vt. 50

Wayne E. PFENNING v. DEPARTMENT OF EMPLOYMENT AND TRAINING.

No. 87-397.

Supreme Court of Vermont.

Jan. 27, 1989.

Michael T. Schein of Hoff, Wilson, Powell & Lang, P.C., Burlington, for plaintiffs-appellants.

Brooke Pearson, Montpelier, for defendant-appellee.

Before ALLEN, C.J., PECK, GIBSON, and DOOLEY, JJ., and KEYSER, J. (Ret.), Specially Assigned.

DOOLEY, Justice.

This appeal from a decision of the Vermont Employment Security Board (Board) comes here a second time, following our partial reversal and remand in Pfenning v. Department of Employment & Training, 147 Vt. 533, 522 A.2d 743 (1986) ("Pfenning I "). We now affirm.

The facts are related in part in Pfenning I, which like the present case concerned claimants' eligibility for benefits during a lockout by their employer from November 4, 1983 to January 15, 1984. In that decision, we rejected claimants' argument that a lockout was not a "labor dispute" within the meaning of 21 V.S.A. § 1344, the provision enumerating disqualifications for benefits. 147 Vt. at 537, 522 A.2d at 746. We agreed with claimants, however, that evidence limited to the reduction in the number of worker hours was insufficient to support a conclusion that there had been a "stoppage of work" within the meaning of the statute. Citing Trapeni v. Department of Employment Security, 142 Vt. 317, 323, 455 A.2d 329, 332 (1982), and Whitcomb v. Department of Employment & Training, 147 Vt. 525, 526, 520 A.2d 602, 603 (1986), we noted that "[s]toppage of work means a substantial curtailment of the employer's operations.... Factors proper for consideration in resolving the question include a comparison of business revenues, production or services, and worker hours before and during the strike." 147 Vt. at 535, 522 A.2d at 744. The fault we found with the Board's decision in Pfenning I was that it calculated the curtailment of production percentage by using the figures for the reduction in worker hours, making that percentage decline the sole factor in determining the existence of a "work stoppage." We added that "[i]f the Board's conclusion that a stoppage of work occurred is to stand, there must be other findings which support a substantial curtailment in such things as production and revenues." 147 Vt. at 535, 522 A.2d at 744-45.

On remand, the Board sent the case back to the referee for further fact finding consistent with our decision. Further evidence was taken, and the referee issued a new decision based on that evidence again concluding that a stoppage of work had occurred. The referee rejected two measures of "substantial curtailment" advanced by the claimants. He rejected production output as a measure because the product involved is machines that take six to eighteen months to produce while the labor dispute lasted only a little over two months. Thus, the referee gave little weight to the fact that the employer's shipments of finished machines did not decline during the labor dispute. Similarly, the referee rejected the use of sales revenue as a measure because the employer was paid only on the delivery of a finished machine. Thus, sales revenues mirrored production output and did not show an unusual decline during the labor dispute. Instead, the referee adopted average daily machining operations as the most important measure of the employer's overall operations. Since the number of these machining operations declined greatly during the labor dispute, although a small number of operations were done by management and nonbargaining unit personnel, the referee found a substantial curtailment in the employer's operations and, therefore, a "work stoppage."

The Board adopted the referee's decision essentially for the reasons given by the referee. It found that "a comparison of the number of machining operations before and during the lockout is a much more accurate and meaningful indicator than a comparison of the number of completed machines actually shipped." While it concluded that some financial impact is normally required for a stoppage of work to be found, it stated that the requirement cannot be absolute: "As we see it, there are cases in which this general rule is unworkable and inapplicable, and this is one such case." Based on this reasoning, it affirmed the referee and denied benefits to the claimants.

In this Court, claimants argue that the Board ignored our earlier decision and once more based its decision on the single factor of decline in worker hours during the lockout since the decline in daily machining operations necessarily reflected the decrease in worker hours, or nearly so. While we recognize the force of claimants' argument and agree that this case falls close to the line, we cannot accept the claimants' position for three main reasons.

First, the question of whether there has been "substantial curtailment" of the employer's operations must depend upon the facts and circumstances of each case. Whitcomb v. Department of Employment & Training, 147 Vt. at 526, 520 A.2d at 603. Further, it is essentially one of fact. See Shell Oil Co. v. Brooks, 88 Wash.2d 909, 915, 567 P.2d 1132, 1135 (1977). As such, we must uphold the Board's factual conclusion unless we conclude that its...