Wheelock, In re
| Decision Date | 01 February 1972 |
| Docket Number | No. 56-71,56-71 |
| Citation | 130 Vt. 136,287 A.2d 569 |
| Parties | In re Edward WHEELOCK. |
| Court | Vermont Supreme Court |
J. Morris Clark, Vermont Legal Aid, Inc., Burlington, for plaintiff.
James M. Jeffords, Atty. Gen., and Raymond S. Fitzpatrick, Asst. Atty. Gen., for defendant.
Before SHANGRAW, BARNEY, SMITH and KEYSER, JJ., and DALEY, Superior judge.
The plaintiff is appealing the denial to him of unemployment benefits by the Vermont Employment Security Board. That body, after hearing, affirmed the denial of benefits by both its claims examiner and its appeals referee. The plaintiff then brought the matter to this Court under the provisions of 12 V.S.A. § 2382 et seq.
The issue central to this appeal is whether or not, within the definition of 21 V.S.A. § 1344, the plaintiff left his last employing unit voluntarily, without good cause attributable to that employer. The lack of good cause would disqualify the plaintiff for certain benefits, and it was on that ground that relief was in fact denied.
After the claims examiner turned down the original application for compensation payments the matter went to its first hearing, before the appeals referee. Both the plaintiff and his employer appeared and gave evidence. From what was presented to him, the referee went on to make findings and issue his decision declaring the plaintiff disqualified for benefits.
For proper understanding, a review of those findings must include a description of the employment practices involved. The plaintiff is a carpenter, and worked for the employer as a carpenter foreman. Although he was carried on the company books in the manner of an ordinary employee, with his social security, withholding and various other pay deductions handled by the company, he worked on what is described as a piecework basis. The employer would set a base or unit price for a job, the plaintiff would assemble a crew, paid by the employer, and the job would be done. The difference between the wage cost for the crew and the unit price previously set went to the plaintiff as his compensation. It was often not quite as simple as it is described, but the procedure followed that general pattern.
Difficulty arose when the employer proposed to assign the plaintiff to a job involving the installation of aluminum siding. Most of the prior jobs had been concerned with erecting prefabricated camps and garages, although the plaintiff had also done other kinds of carpentry and masonry work for that employer. He had never worked on aluminum siding other than assisting in cornering that kind of siding on one job.
The appeals referee found that the job in question was offered to the plaintiff at the prevailing rate for aluminum siding work. After first agreeing to undertake the work, the plaintiff then refused, on the basis that he not only would not profit from the job, but might be out of pocket. As a result of this disagreement, the plaintiff left his employment. The employer then hired another man, allegedly inexperienced, who did do the job and cleared approximately $6.00 an hour. While working for this employer, when an hourly rate was applicable, the plaintiff had accepted $5.00 an hour, and, on occasion, less.
When the decision of the claims referee went against the plaintiff, he appealed to the employment security board. At that hearing the board allowed the plaintiff to put in what new evidence he chose, as authorized by 21 V.S.A. § 1349. The board also had before it the transcript of the evidence taken by the referee.
The board expressly adopted the findings of the referee and sustained his decision adverse to the plaintiff. In so doing, the board prefaced its findings with the following statement:
We have reviewed the evidence taken before the Referee, his decision based on that evidence and the additional evidence taken before the Board, and upon review we find that there is sufficient evidence on which the Referee based the following Findings of Fact, and accordingly they will stand as the Findings of Fact of the Board.
The plaintiff first faults the board for not properly carrying out its function under 21 V.S.A. § 1349. His position is that this statute contemplates a hearing de novo, which was not given, and which requires an independent evaluation of the evidence by the board. He claims that the board's reference to the 'sufficient evidence' on which the referee's findings were based, demonstrates that the board dis no more than perform an appellate function of testing the findings to see if they had any evidentiary support. This, he says, establishes that the board itself did not truly weigh any of the evidence.
The plaintiff places a heavy burden on the word 'sufficient'. His view is that, in a long line of cases, and in other contexts, phrases referring to the 'sufficiency of the evidence' have achieved a kind of technical status representing a way of testing the findings of a judicial trier of fact upon appellate review. It might appear so. See, for example, Guilmette v. Franklin Realty, 127 Vt. 130, 135, 241 A.2d 323 (1968). Correctly, the test of the adequacy of the evidence to support the findings...
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State v. Madison
...4475 means "de novo hearing ... where the case is heard as though no action whatever had been held prior thereto"); In re Wheelock, 130 Vt. 136, 140, 287 A.2d 569, 572 (1972) (de novo characteristic of de novo proceeding relates to taking of all testimony anew and disregarding initial proce......
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Luck Bros., Inc. v. Agency of Transp.
...appellate review, since the board may evaluate evidence in record form, as well as receive direct testimony.” In re Wheelock, 130 Vt. 136, 140, 287 A.2d 569, 572 (1972) (describing review by Employment Security Board as set forth in 21 V.S.A. § 1344 ); see Madison, 163 Vt. at 368–69, 658 A.......
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Barcomb, In re, 113-73
...credible evidence which fairly and reasonably supports the board's findings of fact on this issue of 'good cause.' In Re Wheelock, 130 Vt. 136, 139, 287 A.2d 569 (1972). There is no error in the decision of the board on that issue on such findings. Thus, the findings in this Court are to be......
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Cook v. Department of Employment and Training, 82-027
...by this Court if they are supported by credible evidence, even if there is substantial evidence to the contrary. In re Wheelock, 130 Vt. 136, 141, 287 A.2d 569, 572 (1972). The wording of the NECI employment contract, with respect to the issue of managerial control and accountability, may w......