STATE OF RHODE
ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION
NORTH
PROVIDENCE HOUSING AUTHORITY :
:
:
VS. : A.A. NO. 04-82
:
:
DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW
D E C I S I O N
F I N D I N G S & R E C O M M E N D A T I O N S
JABOUR, M. This matter is before the Court 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, (hereinafter
cited as "the Board") which approved the decision of the Referee Gunter
A. Vukic that the claimant, Heather Coyne (hereinafter cited as "claimant")
was entitled to receive employment security benefits. This matter has been referred
to me for the making of findings and recommendations pursuant to section 8-8-16.2
of the General Laws.
FACTS & TRAVEL
OF THE CASE
The claimant was employed by North Providence Housing Authority for approximately
nine months. Her last day of work was September 20, 2003. She filed a claim
for Employment Security benefits on May 5, 2004. In a Director's decision dated
May 20, 2004 it was determined that the claimant was discharged under disqualifying
circumstances under the provisions of Section 28-44-18 of the Rhode Island Employment
Security Act. The claimant filed a timely appeal of that decision. A hearing
on the appeal was held on June 30, 2004, at which time the claimant appeared
and testified. The employer, with proper notice, failed to appear and testify.
The Referee found
the following facts:
"I find by a preponderance of credible testimony and evidence the following
Findings of Fact: The claimant worked as a bargaining unit receptionist for
the North Providence Housing Authority until her medical leave of absence on
September 20, 2003. While on her medical leave of absence, the claimant was
notified by letter dated December 26, 2003 that she was terminated due to her
failure to continue paying union dues as required under her bargaining unit
agreement.
This was the claimant's first bargaining unit work. The claimant's contract was in her desk drawer at work. The claimant was unaware of the cited provision and was not allowed to make payment of outstanding dues."
Decision of Referee at page 1.
The Referee came
to the following conclusion:
"The issue involved is whether or not the claimant was discharged from
this job under disqualifying circumstances within the provisions of Section
28-44-18 of the Rhode Island Employment Security Act.
An individual who is discharged for reasons of proven misconduct in connection with his work must be held to have been terminated under disqualifying circumstances under the provisions of Section 28-44-18 which provides, in part, as follows:
For the purposes of this section, misconduct shall be 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 which is fair and reasonable to both the employer and the employed worker.
In the case of Turner vs. Department of Employment and Training, Board of Review, 479 A 2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a general definition of the term, "misconduct", as enunciated in Boynton Cab Co. vs. Newbeck, 237 Wis. 249, 296 N.W. 636 (1941):
"'[M]isconduct'
. . . is limited to conduct evincing such willful or wanton disregard of an
employer's interests as is found in deliberate violations or disregard of standards
of behavior which the employer has the right to expect of his employee, or in
carelessness or negligence of such degree or recurrence as to manifest equal
culpability, wrongful intent or evil design, or to show an intentional and substantial
disregard of the employer's interest or of the employee's duties and obligations
to his employer. On the other hand mere inefficiency, unsatisfactory conduct,
failure in good performance as the result of inability or incapacity, inadvertencies
or ordinary negligence in isolated instances, or good faith errors in judgment
or discretion are not to be deemed 'misconduct' within the meaning of the statute.
Id. at 259-60, 296 N.W. at 640."
In cases of termination, the employer bears the burden to prove by a preponderance
of credible testimony and evidence that the claimant engaged in an act or acts
of misconduct as defined by the law in connection with her work. It must be
found and determined that the employer has failed to meet their burden.
In the instant case, the claimant was terminated without notice based on a provision in her union contract that she was unaware of. Although the employer was required to separate the claimant based on the union contract for her failure to pay dues, no misconduct has been found that would support denying the claimant Employment Security benefits. The claimant was willing to pay back dues at the time she found out about the provision.
Therefore, I find and determine that the claimant was discharged under non-disqualifying circumstances and benefits are allowed if otherwise eligible.
No representative for the employer appeared for the hearing, and there was no rebuttal to the claimant's sworn testimony.
Decision of Referee at pages 1 and 2.
On June 30, 2004, the Referee held that "the decision of the Director is reversed. The claimant was discharged, but not for reasons of misconduct in connection with the work. Benefits, therefore, cannot be denied under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act."
Decision of Referee at page 3.
A timely appeal
was filed and the matter was heard before the Board of Review on July 22, 2004.
The claimant, an employer representative and counsel for the employer appeared
at the hearing. The Board issued its decision as follows:
"This matter came on to be heard before the Board of Review on July 22,
2004, in connection with the employer's appeal dated July 8, 2004, from a decision
of a Referee dated July 6, 2004, allowing the claimant benefits under the discharge
provisions of the Rhode Island Employment Security Act. The claimant, an employer
representative and counsel for the employer appeared at the hearing.
The Board of Review has carefully reviewed the evidence and testimony contained in the record together with the evidence and testimony presented at this hearing.
It is our opinion that the decision of the Referee is a proper adjudication of the facts in this case and the law applicable thereto. Accordingly, the decision of the Referee is approved and confirmed and incorporated by reference herein."
Decision of Board at page 1.
Thereafter, a complaint
was filed for judicial review; jurisdiction for review of the Board's decision
is vested in the District Court by Rhode Island General Laws § 28-44-52.
STANDARD OF REVIEW
The Administrative Procedures Act, sets forth the standard of review in Rhode
Island General Laws § 42-35-15(g), 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.'" The Court will not substitute its judgment for
that of the Board as to the weight of the evidence on questions of fact. Stated
differently, the findings of the agency will be upheld even though a reasonable
mind might have reached a contrary result.
The Supreme Court of Rhode Island recognized in Harraka v. Board of Review of
Department of Employment Security, 98 R.I. 197, 200, 200 A.2d 595, 597 (1964)
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.
The issue before the Court is whether the decision of the Board was supported
by reliable, probative, and substantial evidence in the record and whether or
not it was clearly erroneous or affected by error of law.
The Board determined that claimant was discharged under disqualifying circumstances
within the provisions of Section 28-44-18 of the Rhode Island Employment Security
Act. This Court "must determine whether the decision is [m]ade upon unlawful
procedure" or "affected by other error of law", Section 35-15(g)(3)
and (4)." University of Rhode Island v. Department of Employment and Training,
Board of Review, 691 A.2d 552, 554 (1997). Under the provisions of R.I.G.L.
Section 28-44-18, "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 a result of the employee's incompetence."
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 employer
representative as well as the claimant appeared and gave testimony at various
times during the evidentiary hearings on this matter. The employer's counsel
was present at the Board's hearing. In addition to oral testimony, the Board
considered written evidence which also included the collective bargaining agreement.
There was ample probative evidence for the Board to consider.
Upon careful review of the record, this Court should find 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).
CONCLUSION
I recommend that this Court find that the decision of the Board of Review was
made upon lawful procedure and was not affected by error of law. Rhode Island
General Laws § 42-35-15(g)(3),(4). Neither was it clearly erroneous in
view of the reliable, probative and substantial evidence on the whole record
nor arbitrary or capricious. Rhode Island General Laws § 42-35-15(g)(5),(6).
Accordingly, I recommend that the decision of the Board be AFFIRMED.
____________________
Christine S. Jabour
Magistrate
October _____, 2005
Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410 A.2d 425 (1980)
citing R.I. Gen. Laws § 42-35-15(g)(5).
Cahoone v. Board of Review of the Department of Employment Security, 104 R.I.
503, 246 A.2d 213 (1968).
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).