United States Steel Corp. v. Department of Employment Security & Board of Review of the Industrial Commission , 523 P.2d 854 ( 1974 )

CALLISTER, Chief Justice:

Plaintiff initiated this proceeding to review the determination of the Board of Review of the Industrial Commission, affirming the decision of the appeals referee that claimants, Evans, Liston and Durrant, were entitled to unemployment compensation benefits.

Claimants were journeymen millwrights, a skill which is classified as a trade and craft position by plaintiff. They were employed in the coke plant at plaintiff’s Geneva Works. In the autumn of 1972, there was a coal shortage which necessitated a curtailment of the coke oven operations and a consequent reduction in the number of millwrights needed. Under the contract between plaintiff and the union, the claimants had the option of taking a direct layoff from the millwright position or being assigned as a laborer. Each claimant exercised his option to take a layoff rather than accept an unskilled position in the labor pool.

The base rate of pay for a millwright is $4.826 per hour; the base rate for a laborer is $3.51 per hour. Under a plan negotiated between the union and the company, a worker who is placed on a lower rated job is paid a sum quarterly to compensate him for the reduction in earnings at the rate of 85% of his previous year’s earnings, including incentive pay, converted to an hourly basis.

The position of millwright is not by progression through the company’s labor pool. A person is either hired directly as a journeyman millwright or as an apprentice. The claimants elected the layoff since the proffered alternative work would not utilize their special skills, training and experience for an indefinite time. Claimants filed for unemployment compensation while they sought employment commensurate with their prior training, earnings and experience.

Plaintiff vigorously urges that claimants were ineligible for unemployment compensation benefits under Section 35-4-5(a), U.C.A.1953, since they left work voluntarily without good cause, and the determination of the appeals referee to the contrary was unsupported by the record and erroneous as a matter of law.¹ In essence, plaintiff contends that as a matter of law claimants left their work voluntarily without good cause, when they rejected the offer of continuing employment as laborers with earnings substantially equivalent to their prior pay, with full fringe benefits. Claimants, according to plaintiff were qualified to perform the proffered work with no greater risk to their health, safety, morals or physical well-being than was involved in their prior position as millwrights.

The Board of Review found that the appeals referee’s decision was fair, unbiased and supported by competent- evidence. The Board stated that the referee applied the proper test of eligibility of a claimant under Section 35-4 — 5(a), U.C.A.1953, namely, whether, under all of the attendant circumstances, did the claimant have good cause for leaving his work temporarily and seeking to apply his attained skills in the open labor market rather than accepting assignment to the unskilled labor pool. The Board of Review emphasized that a millwright’s skill is not attained by progression through labor experience but rather by virtue of specialized training, the individual is employed as a skilled craftsman. The Board of Review concluded that claimants had sufficient cause, as shown by the evidence, to seek temporary work elsewhere in the skilled occupation for which they were fitted by training and experience rather than accepting work in the general labor pool outside of their field of experience.

The appeals referee in his decision, made a scholarly analysis of the law, which merits summation in this opinion. • He stated that the employer’s approach was that if a claimant were capable of performing the work, he would be obliged immediately to take the lower position, which would be deemed suitable so long as the general criteria, such as, pay, safety, etc. as provided in Section 35-4-5(c)(1), U.C.A.1953, were met. In contrast, the claimant’s approach might be characterized as the use of the highest skill, which is premised on the concept that a claimant should not be expected immediately to accept employment using less than his highest skill. The immediacy of the acceptance would vary according to the training and experience attached to the skill, its marketability, and the length of the claimant’s unemployment. For example a claimant, with a very technical skill, which he had acquired by suitable schooling and working experience and for which there was a market, would be allowed to refuse work not utilizing his highest skill for a much longer period than a person who had acquired a simple skill within a short time on the job. Nevertheless, even a person with the highest skill would be expected to lower his standard of expectation for work, such as pay, working conditions, etc. as the period of his unemployment extended; the rate of reduction would be dependent upon the nature of the skill.

The appeals referee explained that the latter approach comported with the overall suitability standards set forth in Section 35-4-5(c)(l). The employer’s approach emphasizes physical fitness and ability and minimizes the prior training and experience provisions of the law. In a recent amendment to the Act, Section 35-4-5 (g), the legislature has expressed the contemporary view of society to encourage an individual to take training to acquire a skill. To hold that skill as a factor should be immediately excluded would be inconsistent both with recently expressed legislative intent and the specific standards of “prior training” and “experience” set forth in Section 35-4-5(c)(l) to determine the suitability of work.

The appeals referee stated that the basic intent of Unemployment Compensation Act was to alleviate the undue economic hardship experienced by those who were unemployed through no fault of their own. To interpret the law so as to compel a person confronted with pending unemployment to accept immediately a position below his skill would be to create a situation where a person was coerced by economic pressure to abandon his hard-earned training and experience. An interpretation consistent with the intent of the law would be to give a person an opportunity for a reasonable period of time to seek employment utilizing his highest skill so that he might provide better economic care for his family and be an attribute to his community.

The instant case is readily distinguishable from United Steelworkers v. Department of Employment Security ² and Bus V. Bethlehem Steel Corporation ³ upon which plaintiff relies, since neither case involved whether the proffered employment was suitable by reason of the claimant’s skill, training and experience but merely involved the issue of whether it constituted good cause to refuse employment at substantially reduced wages.

In the instant case, the work offered by plaintiff was to begin immediately at the termination of claimants’ services as millwrights, a skilled job. At the time claimants were compelled to exercise their option, they had been granted no opportunity to search the labor market for employment which would utilize their skill, training and experience. Under such circumstances, work as unskilled laborers was unsuitable, and claimants did not voluntarily leave their employment without good cause.⁴ The Board of Review did not err in upholding the determination that claimants were eligible for unemployment compensation. Defendants are awarded their costs.

TUCKETT, J., concurs.

1 . Sec. 35-4-10(i), U.C.A.1953, provides: “ . . . In any judicial proceeding under this section the findings of the commission and the board of review as to facts if supported by evidence shall be conclusive and the jurisdiction of said court shall be confined to questions of law. . . . ”

2 . 16 Utah 2d 72, 395 P.2d 837 (1964).

3 . 37 A.D.2d 98, 322 N.Y.S.2d 310 (1971).

4 . See Dubkowski v. Administrator, Unemployment Compensation Act, 150 Conn. 278, 188 A. 2d 658, 660-661, 97 A.L.R.2d 1120 (1963) ; In Re Troutman, 264 N.C. 289, 141 S.E.2d 613 (1965) ; Bayly Manufacturing Co. v. Dept. of Employment, 155 Colo. 433, 395 P. 2d 216 (1964) ; Boeing Company v. State Employment Security Board of Review, 209 Kan. 430, 496 P.2d 1376 (1972) ; 97 A.L.R. 2d 1125, Anno : Refusal of type of work other than that in which employee was formerly engaged as affecting right to unemployment compensation, Sec. 3, p. 1127.