Celani

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

Cenerini, J. This matter is before this Court on the complaint of Lawrence Celani (herinafter “Celani”) filed pursuant to R.I.G.L. 1956 § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor & Training, (hereinafter “the Board”) which upheld the finding of Referee Carl Capozza that complainant was not entitled to receive employment security benefits.

Lawrence Celani was employed by the Rhode Island Public Transit Authority for nineteen years and last worked on November 26, 2004, when he became injured while driving. (Tr. at 5-6.) Celani filed a claim for Worker’s Compensation benefits, which he received until February 10, 2005. (Tr. at 7.) He was released to return to work on that date by Dr. Uptigrove. (Tr. at 7.)

Celani continued to suffer from migraine headaches and sought treatment from another physician. (Tr. at 9.) From February 14 to February 16, 2005, Celani contacted Beacon Mutual Insurance to apprise the Worker’s Compensation provider of the changes in his condition. (Tr. at 10.) Celani filed for TDI benefits after February 18, 2005 and was granted benefits. (Tr. at 11-12.) Celani contacted his employer on February 18, 2005 to apprise them of the situation and received notice that he was terminated on February 19, 2005. (Tr. at 16-17.) The employer’s letter states, “Based upon the contract between the Rhode Island Public Transit Authority and the Amalgamated Transit Union, Division 618, an employee who is AWOL for three consecutive work-days will be considered to have resigned his employment with RIPTA. In light of this information, as of this date, please be advised that your resignation has been accepted.” (Employer 2.)

Stephen Farrell, Business Agent for the Amalgamated Transit Union, appeared at the hearing to testify as a witness for Celani. As a result of an interest arbitration award between RIPTA and the Union, a new section was added to the collective bargaining agreement which would provide for a new policy for employees who are Absent Without Leave (AWOL). (Employer 3, Tr. at 20). Mr. Farrell testified that the Union “haven’t come to an agreement with the company yet as to exactly how the labor contract is gonna (sic) read. So it’s, um, it’s May of 2005, and we don’t have labor agreements printed up yet.” (Tr. at 20-21.) The interest arbitration award had been distributed solely to the Union and Employer, with bargaining unit members not having received a copy of the award.

Celani filed for employment security benefits on March 30, 2005. On April 19, 2005, the Director issued a decision that the claimant voluntarily left his job without good cause as provided for under § 28-44-17 of the Rhode Island Employment Security Act.

Claimant filed a timely appeal, and a hearing was held before Referee Carl Capozza on May 16, 2005. On May 18, 2005, the referee issued a decision finding the following facts:

The claimant’s last day of work was November 26, 2004. Following that date the claimant was out of work due to a work-related injury. In accordance with a doctor’s note which was provided to the employer, the claimant was medically released to return to work on February 10, 2005. The claimant did not return to work on that date or any date thereafter and made no contact with his employer in an effort to report for work. On February 17, 2005 the employer directed a notice to the claimant indicating that because he was AWOL for three consecutive workdays following his return-to-work date and made no contact with the employer that he was considered to have resigned his position especially as provided in a new subsection to the agreed union contract.

In order to show good cause for leaving his job, the claimant must establish that the job was unsuitable or that he had no reasonable alternative. Based on the credible testimony and evidence presented in this case, I find that neither of these situations existed when the claimant failed to return to work or contact his employer following his medical release to return to work on February 10, 2005. As a result I find that he voluntarily left his job without good cause within the meaning of the above Section of the Act, and therefore is not entitled to benefits.

The Referee held, on May 18, 2005 that the complainant was disqualified from receiving employment security benefits, pursuant to R.I.G.L. § 28-44-17. Thereafter, a timely appeal was filed and the matter was heard by the Board of Review. The issue before the Board was whether the claimant left work voluntarily with good cause within the meaning of § 28-44-17 of the Rhode Island Employment Security Act. On July 6, 2005, the Board, in a majority decision, determined that the decision of the Referee was a proper adjudication of the facts in this case and the law applicable thereto and upheld the Referee's decision. The claimant filed a Claim of Appeal and Petition within the Sixth Division District Court on August 16, 2005; the appeal was denominated A.A. No. 05-92.

This case involves the application and interpretation of the following provision of the Rhode Island Employment Security Act:

28-44-17. Voluntary leaving without good cause. – An individual who leaves work voluntarily without good cause shall be ineligible for waiting period credit or benefits until he or she establishes to the satisfaction of the director that he or she has subsequent to that leaving had at least eight (8) weeks of work, and in each of those eight (8) weeks has had earnings of at least twenty (20) times the minimum hourly wage as defined in chapter 12 of this title for performing services in employment for one or more employers subject to chapters 42 – 44 of this title. For the purposes of this section, voluntarily leaving work without good cause shall include voluntarily leaving work with an employer to accompany, join or follow his or her spouse in a new locality in connection with the retirement of his or her spouse, or failure by a temporary employee to contact the temporary help agency upon completion of the most recent work assignment to seek additional work unless good cause is shown for said failure; provided, however, that the temporary help agency gave written notice to the individual that the individual is required to contact the temporary help agency at the completion of the most recent work assignment to seek additional work.

In the case of Harraka v. Board of Review of Department of Employment Security, 200 A.2d 595, 597-98 (1964), 98 R.I. 197, 201, the Rhode Island Supreme Court declared that a liberal reading of good cause would be adopted:

To view the statutory language as requiring an employee to establish that he terminated his employment under compulsion is to make any voluntary termination thereof work a forfeiture of his eligibility under the act. This, in our opinion, amounts to reading into the statute a provision that the legislature did not contemplate at the time of its enactment.

In excluding from eligibility for benefit payments those who voluntarily terminate their employment without good cause, the legislature intended in the public interest to secure the fund from which the payments are made against depletion by payment of benefits to the shirker, the indolent, or the malingerer. However, the same public interest demands of this court an interpretation sufficiently liberal to permit the benefits of the act to be made available to employees who in good faith voluntarily leave their employment because the conditions thereof are such that continued exposure thereto would cause or aggravate nervous reactions or otherwise produce psychological trauma.

The Court, as stated above, rejected the notion that the termination must be “under compulsion” or that the reason therefore must be of a “compelling nature.”

The standard of review is provided by R.I.G.L. § 42-35-15(g), a section of the state Administrative Procedures Act, which provides:

(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(5) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Thus, on questions of fact, the District Court “… may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are ‘clearly erroneous.’” Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410 A.2d 425 (1980) (citing R.I.G.L. § 42-35-15(g)(5)). The Court will not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. Cahoone v. Board of Review of the Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968). Stated differently, the findings of the agency will be upheld even though a reasonable mind might have reached a contrary result. Cahoone, 246 A.2d at 215. See also, D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).

The Supreme Court has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:

…eligibility for benefits is to be determined in the light of the expressed legislative policy that “Chapters 42 to 44, inclusive, of this title shall be construed liberally in aid of their declared purpose which declared purpose is to lighten the burden which now falls upon the unemployed worker and his family.” G.L. 1956, § 28-42-73. The legislature having thus declared a policy of liberal construction, this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances. Of course, compliance with the legislative policy does not warrant an extension of eligibility by this court to any person or class of persons not intended by the legislature to share in the benefits of the act; but neither does it permit this court to enlarge the exclusionary effect of expressed restrictions on eligibility under the guise of construing such provisions of the act. Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 200, 200 A.2d 595, 597 (1964) (Emphasis added)

The issue before the Court is whether the decision of the Referee, as adopted and ratified by the Board, was supported by reliable, probative, and substantial evidence in the record or whether or not it was clearly erroneous or affected by an error of law. There is no dispute that the claimant was ill and authorized to remain out of work until February 10, 2005; rather, the issue is whether the employer, under the framework of the collective bargaining agreement, had proper grounds to determine that the employee’s actions constituted a voluntary resignation without proper cause, thereby disqualifying the claimant from receiving benefits pursuant to § 28-44-17 of the General Laws?

Celani requests that this Court reverse the Board of Review’s decision, arguing that he was inappropriately found to have voluntarily left without good cause as defined in R.I.G.L. § 28-44-17. More specifically, through the testimony of Business Agent Stephen Farrell, Celani argues that his absence from work due to medical reasons does not constitute a violation of RIPTA’s new AWOL policy, because the general membership of the Union and Celani specifically, were not aware of the new AWOL contract provision. (Tr. at 20-21.)

Sworn testimony by Mr. Farrell also indicates that the Union and the Employer had not agreed to the language of the new contract and that therefore, the collective bargaining agreement had not been printed. (Tr. at 20-21.) Testimony indicates that the new AWOL contract results from an interest arbitration award, but does not address whether Celani attended a membership meeting to become aware of the new AWOL policy. (Tr. at 20.) The employer apparently itself never distributed to its employees any notice of the AWOL policy. This Court finds it difficult to imagine that progressive legislation intended to “lighten the burden which now falls upon the unemployed worker and his family” would not insolate an employee with nineteen years of service who was deemed to have voluntarily resigned from his employment without specific knowledge of the new contract term. Harraka, 98 R.I. at 100. Further, “this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances.” Id. Accordingly, the Board of Review has erred in their application of R.I.G.L. § 28-44-17 and the plaintiff is eligible for employment benefits.^{^[1]}

Furthermore, if Celani’s circumstances of separation from employment were to be deemed to be misconduct, the plaintiff would not be disqualified from benefits pursuant to § 28-44-18 of the Rhode Island Employment Security Act, which specifically touches on disqualifying circumstances, and provides:

28-44-18. Discharge for misconduct. --- An individual who has been discharged for proved misconduct connected with his or her work shall become ineligible for waiting period credit or benefits for the week in which that discharge occurred and until he or she establishes to the satisfaction of the director that he or she has, subsequent to that discharge, had at least eight (8) weeks of work, and in each of that eight (8) weeks has had earnings of at least twenty (20) times the minimum hourly wage as defined in chapter 12 of this title for performing services in employment for one or more employers subject to chapters 42 – 44 of this title. Any individual who is required to leave his or her work pursuant to a plan, system, or program, public or private, providing for retirement, and who is otherwise eligible, shall under no circumstances be deemed to have been discharged for misconduct. If an individual is discharged and a complaint is issued by the regional office of the National Labor Relations board or the state labor relations board that an unfair labor practice has occurred in relation to the discharge, the individual shall be entitled to benefits if otherwise eligible. For the purposes of this section, "misconduct" is defined as deliberate conduct in willful disregard of the employer's interest, or a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee's incompetence. Notwithstanding any other provisions of chapters 42 – 44 of this title, this section shall be construed in a manner that is fair and reasonable to both the employer and the employed worker

^{^[1]}See also, Texeira v. Department of Employment Security, A.A. 79-256, pg. 4 (Dist. Ct. 11/17/1980) (Pederzani, J.), holding, “The petitioner worked for twenty-five years at the same place of business. It cannot be said that petitioner, by requesting a leave of absence for health reasons, was a ‘shirker, indolent or a malingerer.’”; Distinguish from DeBarros v. Department of Employment Security, A.A. 87-229, (Dist. Ct. 2/4/1991) (DeRobbio, C.J.), holding petitioner was disqualified from benefits where he failed to return to work or present medical documentation to extend his leave; Kirsch v. Department of Employment Security, A.A. 91-31 (Dist. Ct. 3/15/1991) (DeRobbio, C.J.), holding petitioner was disqualified from benefits where he failed to return to work on two consecutive days, was contacted by the employer, and failed to return the employer’s call.