STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

DEROBBIO, C.J. This matter is before the Court on the complaint of Central Tools, Inc., filed pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor and Training, which reversed the finding of the Referee that the claimant, Heather Bisshopp was not entitled to receive employment security benefits.

The travel of the case is as follows. The claimant’s last day of work was May 11, 2001. She filed a claim for Employment Security benefits on July 12, 2001.

On August 20, 2001 the Director determined that the claimant voluntarily left her job without good cause, within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act. As a result, the claimant was disqualified from receiving Employment Security benefits. On September 4, 2001 the claimant filed a timely appeal of the decision.

A hearing was held before a Referee on September 24, 2001 at which time the claimant and the employer’s vice-president of finance were present. On September 24, 2001 the Referee affirmed the Director’s findings and concluded that the claimant quit her job without good cause. On October 9, 2001 the claimant filed an appeal to the Board of Review.

A hearing was held before the full Board of Review on November 7, 2001. An employer representative, the vice-president for finance, and the claimant were present to provide testimony.

The Board determined that the Referee’s decision was not a proper adjudication of the facts, and reversed the Referee’s decision. Thereafter, Central Tools, Inc. filed a complaint for judicial review; jurisdiction for review of the decisions of the Board is vested in the District Court by Rhode Island General Laws § 28-44-52.

The standard of review is provided by Rhode Island General Laws § 42-35-15(g), a section of the state Administrative Procedures Act, which provides as follows:

42-35-15. Judicial review of contested cases.

(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:

 

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(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 Rhode Island General Laws § 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 v. Board of Review of Department of Employment Security, 104 R.I. 503, 246 A.2d 213, 215 (1968). See also D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).

The 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, 201, 200 A.2d 595, 597 (1964).

The issue before the Court is whether the Board’s determination that the Referee’s decision was not a proper adjudication of the facts and that the claimant left work voluntarily with good cause was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

The Board of Review made the following findings of fact:

"The findings of fact contained in the decision of Referee are affirmed and are incorporated into this decision as if fully set forth herein; provided, however, the Board makes the additional following findings, which findings, if in conflict with the Referee’s findings, shall be controlling.

The claimant’s husband is employed by the employer as a manufacturing engineer. The employer operates a single shift between 7 am and 3:15 pm. The claimant’s husband is responsible for, among other responsibilities, ensuring that the production equipment is functioning properly during the shift.

The claimant and her husband explored the possibility of the claimant’s husband taking the claimant’s daughter to childcare. It was determined by the claimant and her husband that it was not possible for the husband to take the claimant’s daughter to childcare and fulfill his job responsibilities."

The Board of Review adopted the following findings of fact of the Referee:

"The claimant was employed four and a half years as an assembler through May 11, 2001. She injured her back and was unable to perform her regular job duties. She was placed on a leave of absence by her employer. She filed a claim for Temporary Disability Insurance benefits. She was in receipt of those benefits beginning the week ending May 11, 2001 and ending with the week ending June 30, 2001. She was released by her doctor to return to work on June 27, 2001. She did not immediately inform her supervisor she was able to return to work due to childcare problems. She had previously lived in Lincoln, Rhode Island and was able to drop her daughter off at a daycare facility at 6:30 a.m. She was scheduled to be at work at 7:00 a.m. She moved to Pascoag, Rhode Island. The daycare facility in Pascoag did not allow children to be dropped off until 7:00 a.m. She would not be able to arrive at work on time. She also could not change her hours. She did not ask her husband, who works for the same company and has flexible hours, to drop off his stepchild at daycare so the claimant could continue in employment."

The Board of Review made the following conclusions:

"The issue in this case is whether or not the claimant left work voluntarily with good cause within the meaning of Section 28-44-17 of the Rhode Island Employment Security Act.

An individual who leaves work voluntarily must establish good cause for taking that action or else be subject to disqualification under the provisions of Section 28-44-17.

At the hearing before the Board the claimant’s testimony clarified her husband’s responsibilities for the employer. The testimony established that the claimant’s husband was responsible for the operation of the equipment on a production line. Although the claimant’s husband was a salaried employee, his hours were not flexible because he was responsible for keeping the machinery working between 7:00 am to 3:15 pm. We conclude that the claimant’s husband’s job responsibilities kept him from assuming childcare responsibilities. The claimant has proved sufficient ‘adverse circumstances that are beyond’ her control to make her eligible for benefits. See Kane v. Women & Infants Hospital, 592 A.2d 137 (RI 1991)."

An individual who leaves work voluntarily must establish good cause for taking that action or else be subject to disqualification under the provisions of Section 28-44-17, which provides:

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 for the week in which the voluntary quit occurred and 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 with good cause shall include sexual harassment against members of either sex. 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, 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.

The approach to be taken in defining "good cause" was stated in 1964 in Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597-98 (1964). The court noted 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 petitioner/employer in this case argues that the claimant had quit her job without good cause; that the Board of Review reversed the Referee’s decision in contravention of overwhelming evidence presented in this case; and that as a matter of law the facts relied upon by the Board of Review did not constitute good cause.

At a hearing before the Board of Review, the Board heard evidence presented by the claimant, Heather Bisshopp. She also presented a letter by her husband who also is an employee of Central Tools, Inc.

The Board also incorporated the findings of fact of the Referee and made additional findings of fact with any conflicting findings of fact being controlled by the Board of Review findings of fact.

A review of the record shows there is evidence on the record that:

1 Both the claimant and her husband were employees of Central Tools, Inc.

2. That the claimant voluntarily quit her job because she could not locate a day care facility that would accept her daughter at 6:30 a.m. and therefore be available to arrive at work for a 7:00 a.m. shift.

3 That Central Tools’ policy would not permit an employee to arrive late daily.

4. That the claimant’s child is a stepchild of her present husband.

5. That the claimant’s husband’s work day starts between 7:00 a.m. to 7:30 a.m.; and further, he did not ask his employer for special accommodations.

The record further demonstrated that claimant did not ask her husband to drop off his stepchild.

The letter presented to the Board from claimant’s husband indicates the following:

"I am the husband of Heather Bisshopp and stepfather of Rachel Dawley, aged 8 years.

We live in the town of Pascoag. I work for Central Tools, Inc. in Cranston. In the morning it takes me 35 to 40 minutes to drive the 31 miles that separate my house and my job.

Central Tools operates a single shift between 7:00 AM and 3:15 PM each weekday.

I am a manufacturing engineer. I am responsible for the manufacturing processes and capital equipment. I may be called on to the production floor at any time during the shift. Therefore, my workday starts at the beginning of the shift.

It has been stated that I am on salary and that my work hours are flexible. On the one hand this is true, i.e. if I arrive at 7:12 AM, my supervisor doesn’t give me a written warning for tardiness. On the other hand, if a process or machine has been inactive for the first 12 minutes of the shift he doesn’t exactly pat me on the back and tell me what a great job I’m doing, if you see what I mean.

Above and beyond the day to day operations of the production floor, I have a meeting every Friday at 7:30 AM sharp.

If after reading the preceding text you continue to believe that I could drop my step-daughter at a day care center in Pascoag at or about 7:00 AM and stroll into Central Tools at quarter to eight and remain employed you are mistaken. Please disabuse yourself of this spurious notion immediately."

The claimant has childcare responsibilities. The Board of Review made a conclusion that there existed sufficient adverse circumstances that were beyond her control and that her husband’s job responsibilities prevented him from assuming the childcare responsibilities.

A review of the entire record demonstrates that there is substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.

On findings of fact, as to the weight of the evidence, this Court shall not substitute its judgment for that of the administrative agency.

The scope of judicial review by the Court is limited by Section 28-44-54 which in its pertinent part provides:

28-44-54. Scope of judicial review - Additional evidence - Precedence of proceedings. - The jurisdiction of the reviewing court shall be confined to questions of law, and, in the absence of fraud, the findings of fact by the board of review, if supported by substantial evidence regardless of statutory or common law rules, shall be conclusive.

Upon careful review of the evidence, this Court finds that the decision of the Board was not "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Rhode Island General Laws § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is hereby affirmed.